                         T.C. Summary Opinion 2015-23



                         UNITED STATES TAX COURT



     LONNIE J. BARTLEY AND KIMBERLY A. BARTLEY, Petitioners v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 24752-13S.                         Filed March 31, 2015.



      Lonnie J. Bartley and Kimberly A. Bartley, pro sese.

      Jeffrey L. Heinkel, Erin Kathleen Salel, and Michael S. Hensley, for

respondent.



                              SUMMARY OPINION


      NEGA, 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


      1
      Unless otherwise indicated, all section references are to the Internal
Revenue Code in effect for the year in issue, and all Rule references are to the Tax
                                                                       (continued...)
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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.

      Respondent determined a deficiency of $3,373 in petitioners’ 2010 Federal

income tax. The issues for decision are whether petitioners are entitled to

deductions for: (1) commuting expenses paid in traveling between petitioners’

residence and several jobsites and (2) certain other unreimbursed employee

business expenses.

                                    Background

      Some of the facts have been stipulated and are so found. The stipulation of

facts and the accompanying exhibits are incorporated herein by this reference.

Petitioners resided in California when their petition was filed.

      Mr. Bartley worked as a construction superintendent for Far West

Contractors Corp. (Far West) from May 2009 to March 2011. Far West’s main

office is in Garden Grove, California, approximately 60 miles northwest of

petitioners’ residence. Mr. Bartley’s employment required him to regularly work

at jobsites away from the main office and even further away from petitioners’

residence. While at Far West Mr. Bartley primarily supervised jobsites in the Los


      1
      (...continued)
Court Rules of Practice and Procedure.
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Angeles metropolitan area--specifically in Redondo Beach and El Segundo,

California. Occasionally, he would visit a site in Rancho Bernardo, California.

For the most part Mr. Bartley would drive directly to the jobsites from his

residence.

      During his employment Far West did not provide Mr. Bartley with a

company vehicle or reimburse him for driving to work. It was Far West’s policy

not to pay employees to drive to work. Far West also required Mr. Bartley to

provide his own personal protection equipment, including protective footwear.

      With their 2010 joint income tax return petitioners filed a Schedule A,

Itemized Deductions, claiming unreimbursed employee business expenses for the

2010 tax year. Petitioners attached a Form 2106-EZ, Unreimbursed Employee

Business Expenses, to their 2010 return, on which they claimed deductions for

commuting expenses of $24,448 and other business expenses of $2,482, including

expenses for a pair of work boots and an overnight stay at a hotel near one of Mr.

Bartley’s jobsites.

      To substantiate their business expenses, petitioners provided credit card

statements with highlighted entries of purported business expenses, most being

from Home Depot. Petitioners never explained the business purpose for these

purchases, and many of the highlighted entries included amounts for cash
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petitioners received back after using their credit card at Home Depot. The credit

card statements, however, showed that Mr. Bartley had purchased work boots and

stayed overnight at a hotel near one of his jobsites.

      Petitioners also prepared a daily commuting log claiming to total the

number of miles Mr. Bartley drove each day for Far West. The log did not

indicate which jobsites Mr. Bartley had visited each day, nor did it specify the

business purposes for the miles driven. At trial Mr. Bartley testified that at least

one of the entries in the log was inaccurate. The entries in the log also appeared to

have been written all at once with the same pen. Although Mr. Bartley’s employer

categorized his jobsites as the Redondo Beach site, the El Segundo site, and the

Rancho Bernardo site, petitioners argued at trial that each of these jobsites was

very large with temporary sites within it that Mr. Bartley would commute between.

                                     Discussion

I.    Burden of Proof

      Generally, the Commissioner’s determination of a deficiency is presumed

correct, and the taxpayer bears the burden of showing the determination is in error.

Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1993). Deductions are a

matter of legislative grace, and the taxpayer bears the burden of proving
                                       -5-

entitlement to any deduction claimed. New Colonial Ice Co. v. Helvering, 292

U.S. 435, 440 (1934); see Rule 142(a). This includes the burden of substantiation.

Hradesky v. Commissioner, 65 T.C. 87, 89-90 (1975), aff’d per curiam, 540 F.2d

821 (5th Cir. 1976).

      Where expenses involve passenger automobiles and traveling while away

from home, no deduction shall be allowed unless the taxpayer substantiates by

adequate records or by sufficient evidence corroborating the taxpayer’s own

statement: (1) the amount of the expenditure or use; (2) the time and place of the

expenditure or use; and (3) the business purpose of the expenditure or use. See

secs. 274(d)(4), 280F(d)(4).

II.   Unreimbursed Business Expenses

      Petitioners’ reported unreimbursed business expenses can be separated into

two categories: (1) commuting expenses and (2) other business expenses.

Petitioners’ other business expenses include an expense for traveling while away

from home (traveling expense) and expenses for purchasing work-related clothing

and equipment.

      A.    Commuting Expenses

      Commuting expenses are generally nondeductible personal expenses,

regardless of the distances involved. See Fausner v. Commissioner, 413 U.S. 838,
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839 (1973); Commissioner v. Flowers, 326 U.S. 465, 473-474 (1946); sec. 1.162-

2(e), Income Tax Regs. There are two exceptions to this general rule where, as

petitioners argue, the commuting involves a temporary work location. See Bogue

v. Commissioner, T.C. Memo. 2011-164, aff’d, 522 Fed. Appx. 169 (3d Cir.

2013). The first exception permits a taxpayer to deduct transportation expenses

incurred in going between a taxpayer’s residence and a temporary work location

outside the metropolitan area where the taxpayer normally lives and works. See

Gorokhovsky v. Commissioner, T.C. Memo. 2013-65; Bogue v. Commissioner,

T.C. Memo. 2011-164; Rev. Rul. 99-7, 1999-1 C.B. 361. The second exception

permits a taxpayer to deduct commuting expenses between the taxpayer’s

residence and a temporary work location, regardless of distance, if the taxpayer

also has one or more regular work locations away from the taxpayer’s residence.

See Bogue v. Commissioner, T.C. Memo. 2011-164.

       A work location is temporary if it is realistically expected to last (and does

in fact last) for one year or less. Id. Work is temporary only if it can be expected

to end within a short time. Norwood v. Commissioner, 66 T.C. 467, 469 (1976).

In contrast, a work location is regular if it is a location at which the taxpayer

works or performs services regularly. Bogue v. Commissioner, T.C. Memo. 2011-

164.
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A work location is either a regular work location or a temporary work location--it

cannot be both at the same time. Id.

      Mr. Bartley worked well over a year at jobsites in Redondo Beach and El

Segundo, California. There are no facts to suggest that the work at these two sites

would end within a short time. Furthermore, we do not accept petitioners’

argument that these two sites should be broken into component parts for purposes

of satisfying the rules. Therefore, they are not temporary work locations, and the

exceptions to the general rule that commuting expenses are not deductible do not

apply to these sites. Although Mr. Bartley worked at a site in Rancho Bernardo,

California, his daily commuting log did not properly substantiate the number of

miles he traveled to this specific site. We also question the reliability of the

information recorded in the commuting log. Despite petitioners’ testimony, we

find it unlikely that the log was made contemporaneously with Mr. Bartley’s daily

commute given the appearance of the entries in the log and the mistakes in the log.

We accordingly sustain respondent’s determination with respect to petitioners’

claimed deduction for commuting expenses.

      B.     Traveling and Other Business Expenses

      Section 162(a) allows a taxpayer to deduct “all the ordinary and necessary

expenses paid or incurred during the taxable year in carrying on any trade or
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business”. A necessary expense is one that is “appropriate and helpful” to the

taxpayer’s business; ordinary expenses are those that are common or frequent in

the type of business in which the taxpayer is engaged. Deputy v. du Pont, 308

U.S. 488, 495 (1940); Welch v. Helvering, 290 U.S. at 113.

      Traveling expenses are expenses other than commuting expenses incurred

while the taxpayer is away from home in the pursuit of a trade or business. See

sec. 162(a)(2); Rehman v. Commissioner, T.C. Memo. 2013-71. A traveling

expense is a deductible business expense under section 162(a)(2) if the taxpayer

shows that (1) the expense was incurred away from home, (2) the expense was

reasonable and necessary, and (3) the expense was incurred in pursuit of a trade or

business. See Strohmaier v. Commissioner, 113 T.C. 106, 115 (1999). In general,

a taxpayer’s home for purposes of section 162(a) is the area or vicinity of the

taxpayer’s nontemporary principal place of employment. Peurifoy v.

Commissioner, 358 U.S. 59, 60 (1958); Hamburg v. Commissioner, T.C. Memo.

1989-669. The policy justification for this rule is to afford deductions to the

taxpayer who “must” incur traveling expenses for work as opposed to the taxpayer

who travels a long distance because of a personal preference of where to live. See

Daly v. Commissioner, 72 T.C. 190, 195 (1979), aff’d, 662 F.2d 253 (4th Cir.
                                        -9-

1981); Tucker v. Commissioner, 55 T.C. 783, 786 (1971); Daiz v. Commissioner,

T.C. Memo. 2002-192.

      Although petitioners did not claim a deduction for traveling expenses on

their Form 2106-EZ, we characterize petitioners’ hotel expense as an attempt to

deduct a traveling expense. Petitioners properly substantiated this expense, but it

was not incurred “away from home” for purposes of section 162(a). Petitioners’

tax home for purposes of this section is the Los Angeles metropolitan area, the

place of Mr. Bartley’s principal place of employment and also the locale of the

hotel. Mr. Bartley was not required by the exigencies of his business to incur the

hotel expense because it was petitioners’ own decision to live far away from Mr.

Bartley’s employment. See Daly v. Commissioner, 72 T.C. at 195. Therefore,

petitioners cannot deduct the hotel expense as a traveling expense under section

162(a).

      Petitioners may claim a business expense deduction for Mr. Bartley’s work

boots. The cost of work clothing may be deducted under section 162 if the

taxpayer can establish that: (1) the clothing was required or essential in the

taxpayer’s employment; (2) the clothing was not suitable for general or personal

wear; and (3) the clothing was not so worn. Yeomans v. Commissioner, 30 T.C.

757, 767-769 (1958).
                                       - 10 -

      The Court is satisfied that petitioners incurred expenses for work boots.

The expense was properly substantiated with a receipt for the purchase of the

boots and was verified on petitioners’ credit card statement. Because Mr.

Bartley’s trade was labor intensive, work boots were essential to his employment

in the construction industry and we find that these boots were not suitable for

general or personal wear. Accordingly, we allow a deduction for the work boots.

      The remainder of petitioners’ reported business expenses were not properly

substantiated because petitioners failed to explain how they related to Mr.

Bartley’s business. Moreover, some of petitioners’ reported business expenses

appeared to be for personal cash withdrawals in conjunction with using their credit

card to purchase items at Home Depot.

      Therefore, we sustain respondent’s determination, with the exception that

petitioners may claim a business expense deduction for Mr. Bartley’s work boots.

      We have considered the other arguments of the parties, and they are not

material to our conclusions.

      To reflect the foregoing,


                                                Decision will be entered

                                       under Rule 155.
