                     T.C. Summary Opinion 2008-96



                        UNITED STATES TAX COURT



                PHILIPPE ANTOINE BRUNET, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket No. 8373-07S.             Filed August 5, 2008.



        Arthur R. Kerr II, for petitioner.

     Erika B. Cormier, for respondent.



     KROUPA, Judge:     This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

at the time 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.
                                  -2-

     Petitioner, an American Airlines pilot, excluded purported

foreign earned income under section 9111 during 2002, 2003, and

2004, the years at issue.    Respondent disallowed the foreign

earned income exclusion and determined a $15,863 deficiency in

Federal income tax against petitioner for 2002, a $10,074

deficiency for 2003, and a $24,912 deficiency for 2004.      The sole

issue for decision is whether petitioner may exclude purported

foreign earned income for the years at issue.      We hold that

petitioner does not qualify for the exclusion because his tax

home was in the United States.

                            Background

     This case was submitted fully stipulated pursuant to Rule

122, and the facts are so found.    The stipulation of facts, the

supplemental stipulation of facts, and the accompanying exhibits

are incorporated by this reference.

     Petitioner began working for American Airlines in 1989, over

a decade before the years at issue.      American Airlines trained

petitioner as a pilot at the American Airlines Flight Academy in

Dallas-Fort Worth, Texas.    American Airlines assigned petitioner

to base airports in the United States during the years at issue.

Petitioner was based at LaGuardia Airport in Queens, New York, in



     1
      All section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                                -3-
January 2002.   Petitioner was based at Miami International

Airport in Miami, Florida, and nearly all of petitioner’s flight

sequences began and ended there between February 1, 2002, and

August 30, 2003.   Petitioner was based at LaGuardia Airport in

Queens, New York, and all his flight sequences began or ended at

LaGuardia or John F. Kennedy International Airport in Queens, New

York, between August 31, 2003, and December 31, 2004.    When

petitioner’s flight schedule prevented him from returning to his

base airport, American Airlines paid petitioner Time Away From

Base compensation.

     Petitioner is a naturalized United States citizen.

Petitioner maintained a residence in St. Martin, French West

Indies, from at least June 1999 to July 2003, and he has

maintained a residence in Pau, France, since August 2003.

Petitioner resided in Pau, France, at the time he filed the

petition.

     Petitioner claimed foreign earned income exclusions of

$88,0402 in 2002, $80,000 in 2003 and $80,000 in 2004.

Petitioner claimed he resided in the French West Indies on the

return for 2002 and in France on the returns for 2003 and 2004.

Respondent determined that petitioner was not entitled to a

foreign earned income exclusion for any of the years at issue and




     2
       Petitioner claimed an $8,040 housing exclusion plus the
$80,000 maximum foreign earned income exclusion.
                                 -4-
issued a deficiency notice to petitioner.     Petitioner timely

filed a petition.

                           Discussion

     We are asked to decide whether petitioner, an airline pilot,

is entitled to the foreign earned income exclusion when he was

based at airports within the United States but claims to have

resided outside of the United States.     United States citizens are

required to include all wage income in taxable gross income,

unless a specific income exclusion applies.     Sec. 61(a); Clark v.

Commissioner, T.C. Memo. 2008-71.      There is a specific income

exclusion for qualified individuals3 whose tax homes are in a

foreign country.    Sec. 911(d)(1).

     A taxpayer’s tax home is generally the vicinity of his or

her employment, rather than the location of the taxpayer’s

personal residence.    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); sec. 1.911-2(b), Income Tax Regs.; Rev.

Rul. 75-432, 1975-2 C.B. 60.    The place of employment for an

airplane pilot has been interpreted as the employee’s base

airport.   Stright v. Commissioner, T.C. Memo. 1993-576; Dougherty


     3
       To be a qualified individual, the taxpayer must prove
either (1) bona fide residency in the foreign country for an
uninterrupted period which included an entire taxable year or (2)
foreign presence for 330 days. Sec. 1.911-2(a), Income Tax Regs.
Petitioner bears the burden of proof that he is a qualified
individual entitled to the foreign earned income exclusion. See
Rule 142(a); Nelson v. Commissioner, 30 T.C. 1151, 1154 (1958);
Cobb v. Commissioner, T.C. Memo. 1991-376.
                                 -5-
v. Commissioner, T.C. Memo. 1991-442; Cobb v. Commissioner, T.C.

Memo. 1991-376; Swicegood v. Commissioner, T.C. Memo. 1989-467.

     Petitioner was based solely in the United States over the

course of his employment with American Airlines.    Except for

minor deviations, petitioner’s flights began and ended at what

American Airlines deemed his base airport.    Petitioner’s base

airports were LaGuardia in January 2002, Miami International

Airport from February 1, 2002, through August 30, 2003, and

LaGuardia Airport from August 31, 2003, through December 31,

2004.   We find it significant that American Airlines paid

petitioner Time Away From Base compensation when he traveled away

from his base airport.   Petitioner’s employment connections with

those two base airports suggest that his tax homes for all the

years at issue were in the United States.

     Because petitioner’s place of employment was in the United

States during the years at issue, his tax home was in the United

States.   Accordingly, he is not a qualified individual for

purposes of the foreign earned income exclusion.

     Petitioner argues nevertheless that because he is a bona

fide resident of France, he qualifies for the earned income

exclusion.   We disagree.   Petitioner is not eligible for the

exclusion because he fails the tax home requirement.    See Stright

v. Commissioner, supra; Dougherty v. Commissioner, supra.
                                -6-
     We need not determine whether the source of petitioner’s

income was “foreign” or whether petitioner was a bona fide

resident of the French West Indies or France because petitioner’s

tax home was in the United States during all years in dispute,

and he was therefore not a qualified individual within the

definition of section 911(d).   Accordingly, we hold that

petitioner is ineligible for the foreign earned income exclusion.


                                           Decision will be entered

                                      for respondent.
