                          T.C. Memo. 2002-47



                      UNITED STATES TAX COURT



                   LON A. BJORNSTAD, Petitioner v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16291-99.                Filed February 20, 2002.



     Lon A. Bjornstad, pro se.

     James E. Schacht, for respondent.



              MEMORANDUM FINDINGS OF FACT AND OPINION

     GERBER, Judge:   Respondent determined deficiencies in

petitioner’s income taxes and additions to tax for the taxable

years 1990, 1992, 1993, 1994, and 1995 as follows:

                                         Addition to Tax
     Year       Deficiency       Sec. 6651(a)(1)    Sec. 6654(a)

     1990        $3,151              $157.55          $206.28
     1992         3,958               197.90           172.62
     1993         4,157               207.85           174.16
     1994         3,301               165.05           171.30
     1995         2,997               144.00           155.46
                                - 2 -


     The sole issue1 for our consideration is whether petitioner

was “away from home” so as to be entitled to deduct his travel

expenses under section 162(a)(2).2

                          FINDINGS OF FACT

     At the time the petition was filed, petitioner resided in

Madison, Wisconsin.

     Petitioner has primarily earned his living as a musician.

For the taxable years in question, petitioner was a member of a

band called “Dr. Bop and the Headliners” (the band).   Generally,

the band played in or began its road trips from Chicago.

However, during his time with the band, petitioner resided with

his parents approximately 10 miles outside of Madison in

Stoughton, Wisconsin.    Petitioner lived with his parents because

Chicago was too expensive and he was trying to pay off a prior

Federal tax liability.   Petitioner’s parents did not require him

to pay a set amount for rent or living expenses.   Instead, he

gave them varying amounts as he was able.

     Petitioner traveled to Chicago from Stoughton on Thursday or



     1
       At trial, petitioner conceded three issues: (1) The
receipt of nonemployee compensation as reported on Forms 1099-
NEC, Non-employee Compensation, (2) the addition to tax for
failure to file returns, and (3) the addition to tax for failure
to pay estimated tax.
     2
       All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure unless otherwise
indicated.
                                - 3 -

Friday, depending on whether the band had a Thursday night

engagement.    The band played the weekend in Chicago or traveled

to another Midwestern city.    Regardless of where the band played

other nights, it played most Sunday nights at Andy’s Night Club

in Chicago.    This was a “promotional” engagement through which

the band hoped to receive additional bookings.    Petitioner

usually returned to Stoughton on Mondays.

     Petitioner traveled by bus between Stoughton and Chicago.

While in Chicago, he stayed in different hotels depending on

availability and paid his own expenses including bus fare, meals,

and hotel rates.    When traveling to cities other than Chicago,

the band paid for petitioner’s transportation from Chicago and

his lodging.   Petitioner continued to pay for his own meals and

his bus fare between Stoughton and Chicago.

     The band paid petitioner compensation for his services in

the amounts of $14,047, $17,262, $18,032, $15,107, and $11,625

during the years 1990, 1992, 1993, 1994, and 1995, respectively.

These amounts did not include reimbursement of the expenses

petitioner incurred when the band played outside of Chicago.    The

band sent petitioner a Form 1099-MISC, Miscellaneous Income, each

year which reflected the amount paid as nonemployee compensation.

     During 1995, petitioner left the band and was employed by

the city of Madison as a bus driver.    For this employment,
                                - 4 -

petitioner received $4,639 in 1995.      These wages were reported by

the city on a Form W-2, Wage and Tax Statement.

     Petitioner failed to file income tax returns for taxable

years 1990, 1992, 1993, 1994, and 1995.      On July 15, 1999,

respondent mailed petitioner a notice of deficiency for those

years.    The deficiency was based on income from the band for the

taxable years in question and the city of Madison for 1995.

     On March 2, 2001, petitioner submitted to respondent’s

counsel a band engagement log, returns, and completed Forms 1040,

U.S. Individual Income Tax Return, reflecting income received

from the band and the city of Madison.      The returns also

reflected business expenses on a Schedule C, Profit or Loss From

Business, of $123 per day for the following numbers of days in

Chicago:    102 days in 1990, 97 days in 1992, 98 days in 1993, 101

days in 1994, and 75 days in 1995.      Petitioner did not claim

business expense deductions for his meals when the band played in

cities other than Chicago.

                               OPINION

     Section 162 allows deductions for all ordinary and necessary

expenses incurred in carrying on a trade or business.       Sec.

162(a).    These expenses include traveling expenses (i.e., meals

and lodging) while away from home.      Sec. 162(a)(2).   However,

section 162 does not allow deductions for personal, living, or
                                - 5 -

family expenses.   Sec. 262.   To qualify under section 162(a)(2),

the expenses must be (1) reasonable and necessary, (2) incurred

while “away from home”, and (3) incurred in pursuit of a trade or

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

     In the context of section 162(a)(2), the word “home” does

not have its ordinary and usual meaning.    Rather, the word “home”

refers to the taxpayer’s principal place of business or

employment and not his personal residence.     Putnam v. United

States, 32 F.3d 911, 916 (5th Cir. 1994); Mitchell v.

Commissioner, 74 T.C. 578, 581 (1980).     If a taxpayer has more

than one place of business, his tax “home” is:    (1) The place

where he spends more of his time; (2) the place where he engages

in a greater part of business activity; and (3) the place where

he derives a greater proportion of his income.     Robertson v.

Commissioner, T.C. Memo. 1997-526 (citing Hoeppner v.

Commissioner, T.C. Memo. 1992-703), affd. 190 F.3d 392 (5th Cir.

1999).

     We find that for the taxable years in question, petitioner’s

tax home, or principal place of employment, was Chicago and not

Stoughton, Wisconsin.   By petitioner’s own admission, he had only

personal reasons for living in Stoughton as opposed to Chicago.

In a normal week, petitioner spent 3 days a week in Stoughton and

4 days a week in Chicago.   On occasion, petitioner spent 3 days
                                - 6 -

in Stoughton, traveled to Chicago, met the band, traveled to

another Midwestern city, and spent Sunday night playing at a

nightclub in Chicago.

     The band had its base of operations in Chicago.    The band

played almost every Sunday night in Chicago at the same venue.

It played the other weekend nights at engagements in the Chicago

area.    When the band traveled to another Midwestern city on a

weekend, it did so from Chicago.    We also note that when the band

did travel, it paid for petitioner’s travel between Chicago and

the engagement city–-not between Stoughton and Chicago.    The band

also paid for petitioner’s hotel room in other Midwestern cities,

but did not pay for petitioner’s hotel room while in Chicago.3

     In attempting to show that Chicago was not his tax home,

petitioner contends that because the band played in several

Midwestern cities, he did not receive the greater portion of his

income from his Chicago engagements.    While the band did play in

Midwestern cities other than Chicago, the record reflects that

the majority of the band’s engagements was in Chicago venues.

Accordingly, we find that petitioner did not receive the greater

portion of his income from other Midwestern cities.    Petitioner’s

tax home was Chicago, and therefore, he is not allowed to deduct



     3
       Petitioner, for the first time in his posttrial brief,
contends that he worked during the week out of his home in
Stoughton as the band’s road manager at a rate of $50 per
engagement. These facts do not appear in the record and are
untimely raised. See Estate of Horvath v. Commissioner, 59 T.C.
551, 555 (1973).
                               - 7 -

expenses of meals and lodging incurred while there, nor to deduct

expenses of travel between Chicago and his residence in

Stoughton.

     Petitioner, however, is allowed to claim deductions, insofar

as adequately substantiated, for expenses incurred while playing

with the band in other Midwestern cities.       Although the band paid

for his transportation and lodging, petitioner paid for his own

meals.   Respondent, however, contends that petitioner did not

substantiate the meal expenses so as to qualify under either

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

46014 (Nov. 6, 1985), or Rev. Proc. 94-77, section 4.03, 1994-2

C.B. 825, 827.

     We agree with respondent for taxable years 1990 and 1992.

The band engagement logs are indecipherable.      However, for

taxable years 1993, 1994, and 1995, we find that petitioner met

the meals-only per diem allowance requirements set forth in Rev.

Proc. 94-77, section 4.03, supra.   The three band engagement logs

show the number of days and places where the band performed.

     This information, in conjunction with petitioner’s

testimony, reflects that petitioner spent the following number of

days in each city for each taxable year:

                      1993              1994            1995
Indiana
Indianapolis        18 days            7 days          5 days
Bloomington          6 days            4 days          4 days
Terre Haute          6 days            2 days          1 day
                                 - 8 -

South Bend            6 days             2 days         1 day
Fort Wayne            6 days             2 days         1 day

                       1993               1994          1995
Illinois
Highland             21 days         18 days           20 days

Wisconsin
Madison               3 days             5 days         2 days

Accordingly, petitioner is entitled to per diem allowances based

on the Federal meals and incidental expenses rate for each city

and taxable year.4   41 C.F.R. ch. 301, pt.7 & app. A (1993); 41

C.F.R. ch. 301, pt.7 & app. A (1994); 41 C.F.R. ch. 301, pt.7 &

app. A (1995).

     We have considered all other arguments advanced by the

parties, and to the extent that we have not addressed these

arguments, we consider them irrelevant, moot, or without merit.

     To reflect the foregoing,


                                         Decision will be entered

                                 under Rule 155.




     4
       The parties should apply the appropriate per diem rate for
each city and taxable year. 41 C.F.R. ch. 301, pt.7 & app. A
(1993); 41 C.F.R. ch. 301, pt. 7 & app. A (1994); 41 C.F.R. ch.
301, pt.7 & app. A (1995).
