                  T.C. Summary Opinion 2007-59



                     UNITED STATES TAX COURT



               JASON EMANUEL AYALA, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6369-06S.              Filed April 23, 2007.


     Jason Emanuel Ayala, pro se.

     Derek W. Kaczmarek, 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 the
taxable years in issue.
                                - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Jason Emanuel Ayala (petitioner) received a notice of

deficiency in which respondent determined:      (1) Deficiencies in

income taxes for 2002, 2003, and 2004 of $2,079, $3,305, and

$4,559, respectively, and (2) accuracy-related penalties under

section 6662(a) for negligence or intentional disregard of rules

or regulations of $416, $661, and $912, respectively.      The

deficiencies arose from respondent’s disallowance of claimed

employee business expenses.    We are asked to decide whether

petitioner may deduct those expenses under section 162(a)(2).

This requires that we decide whether petitioner was “away from

home” when he incurred the expenses.       If we sustain respondent’s

determination, we are also asked to decide whether petitioner is

liable for the accuracy-related penalties.

                              Background

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

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     Petitioner’s mailing address at the time he filed his

petition was in Las Vegas, Nevada.

     Petitioner is employed by Sheehan Pipeline Construction

Company (Sheehan) as a truck driver, and he travels all over the

country delivering materials for Sheehan’s pipe-laying projects.
                                - 3 -

When one project is completed, he is usually assigned a new

project immediately.    Projects can last anywhere from a few weeks

to several months.    During the years at issue, petitioner worked

on several back-to-back projects.

     When he is traveling for work, petitioner tries to find

hotel accommodations that offer weekly rates to keep his expenses

down.2

     When he is not on the road, petitioner stays with his family

in Vallejo, California.    He does not maintain a separate

apartment or household, and he does not pay rent at his family’s

home.    Although he does contribute money towards food and the

like when staying in Vallejo, he does not have any regular

household maintenance expenses.    As he does not have a home of

his own, petitioner keeps many of his possessions at his family’s

home.

     Because petitioner travels frequently and has to receive

mail somewhere, his mailing address is that of a mail service

which forwards his mail to him wherever he happens to be.

Similarly, because he does not reside anywhere for any length of

time, he is not registered to vote.3


     2
        Petitioner did not generally receive a per diem or other
expense reimbursement from Sheehan while working.
     3
        Further demonstrating how much ground petitioner covers
is the fact that his commercial driver’s license was issued by
the State of Texas, and his personal automobile is registered in
                                                    (continued...)
                                   - 4 -

       Petitioner and respondent primarily disagree on whether the

house in Vallejo, California, is petitioner’s “tax home” and

consequently, whether petitioner’s travel expenses incurred while

working for Sheehan are deductible under section 162(a)(2) as

expenses incurred in pursuit of a trade or business while away

from home.

                                Discussion4

A.   Section 162(a)(2)

       Generally, outlays for food and shelter are considered

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

section 162(a)(2) allows a deduction 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.        See

Bochner v. Commissioner, 67 T.C. 824, 827 (1977).       Respondent

contends that petitioner was not “away from home” when he

incurred the expenses and thus that petitioner does not satisfy

the second factor for deductibility of the expenses claimed on

his Federal income tax returns for the years in issue.




       3
      (...continued)
Nevada.
       4
        Given the manner in which these issues were presented to
the Court, we make our decision as to both the deficiencies and
additions to tax without regard to the various burdens of proof
under sec. 7491.
                                - 5 -

     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 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).

     Although the subjective intent of a taxpayer is to be

considered in determining whether the taxpayer has a tax home,

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

consistently focused more on objective criteria.   Section

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

because of the travel requirements of his or her trade or

business, must maintain two places of abode and, therefore, incur

additional living expenses.    Brandl v. Commissioner, 513 F.2d

697, 699 (6th Cir. 1975), affg. T.C. Memo. 1974-160; Kroll v.

Commissioner, supra at 562.    In other words, section 162(a)(2) is

intended to provide relief to a taxpayer who incurs “substantial

continuing expenses” of a home that are duplicated by business

travel.   See James v. United States, 308 F.2d 204, 207-208 (9th
                               - 6 -

Cir. 1962); Kroll v. Commissioner, supra at 562.   When a taxpayer

continuously travels for work and does not have substantial,

duplicative, continuous living expenses for a permanent home

maintained for some business reason, the taxpayer has no tax

home.   Henderson v. Commissioner, 143 F.3d 497, 499 (9th Cir.

1998), affg. T.C. Memo. 1995-559; James v. United States, supra.

      Most significantly in this case, petitioner bore no expenses

in maintaining a home.   Notwithstanding his visits to his

family’s home in California and financial contributions during

those periodic visits, petitioner bore no duplicative living

expenses.   He did not make mortgage payments, pay regular

utilities costs, or regularly pay for running a household.

Petitioner’s costs on the road, while they may have been

substantial, were not redundant, and thus petitioner was not

“away from home” within the intent and meaning of section

162(a)(2) for the taxable years at issue.   Barone v.

Commissioner, supra at 465; Wirth v. Commissioner, 61 T.C. 855,

858-859 (1974).   In short, petitioner’s tax home was wherever he

happened to be.   See Brandl v. Commissioner, supra.    Accordingly,

petitioner is not entitled to deduct the expenses claimed on his

returns for the years at issue.

B.   Section 6662(a)

      Section 6662(a) imposes a penalty equal to 20 percent of the

amount of any underpayment attributable to negligence or
                                - 7 -

disregard of the rules or regulations.    Sec. 6662(b)(1).

“‘[N]egligence’ includes any failure to make a reasonable attempt

to comply with the [Internal Revenue Code], and the term

‘disregard’ includes any careless, reckless, or intentional

disregard.”    Sec. 6662(c).

       Petitioner does not have a bank account, and his credit

cards are billed to his father.    Petitioner’s mother assists him

by handling his finances and acting as his bookkeeper.      Working

for Sheehan is the first job he has had, and petitioner often

pays taxes in several states in addition to his Federal income

tax.    He strikes us as a hardworking young man who does his best

to comply with his tax responsibilities.

       Given the facts presented in this case, as well as

petitioner’s honest and straightforward testimony, we are

convinced that the reasonable cause and good faith provisions of

section 6664(c)(1) are applicable here.    Accordingly, we decide

in favor of petitioner on this issue.

C.   Conclusion

       We find that petitioner’s family’s home in Vallejo was not

his tax home for Federal tax purposes during the years in issue.

Rather, his tax home was wherever he happened to be, and

consequently, petitioner had no home from which to be away for

purposes of claiming deductions for travel expenses under section

162(a)(2).
                         - 8 -

To reflect our disposition of the disputed issues,



                              Decision will be entered

                         for respondent as to the

                         deficiencies in income taxes and

                         for petitioner as to the accuracy-

                         related penalties.
