Opinion
Docket No. 19152.
1949-07-22
BEATRICE H. ALBERT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Louis Albert, Esq., for the petitioner. Melvin L. Sears, Esq., for the respondent.
DEDUCTION— TRAVELING EXPENSE— AWAY FROM HOME.— A woman who worked in Lowell for more than two years is not entitled to deduct as ‘traveling expenses (including the entire amount expended for meals and lodging) while away from home in pursuit of a trade or business‘ amounts spent for meals and lodging in Lowell and Gloucester, where she resided with her husband (apparently unemployed) and young son. Louis Albert, Esq., for the petitioner. Melvin L. Sears, Esq., for the respondent.
The Commissioner determined a deficiency of $167.18 in the petitioner's income tax for the calendar year 1944. The issue for decision is whether the Commissioner erred in disallowing a deduction of $717.91 claimed as ordinary and necessary expenses paid for traveling and board and lodging while away from home in pursuit of a trade or business.
FINDINGS OF FACT.
The petitioner is an individual, who resided during the taxable year with her husband and their nine-year son in Gloucester, Massachusetts. She filed an income tax return for that year with the collector of internal revenue for the district of Massachusetts. The record does not show whether or not the petitioner's husband was engaged in any trade or business during 1944.
The petitioner was employed by the Chemical Warfare Procurement District of Boston of the War Department of the United States Government from August 12, 1942, until December 29, 1945.
She was appointed for training at the Boston Chemical Warfare Training School, Fall River, Massachusetts, and later for duty anywhere in New England. She was first a junior inspector. SP-3, at a salary of $1,440 per annum, and then received the following promotions: Assistant inspector, SP-4, $1,620 per annum, November 16, 1942; inspector, CP-5, $1,800 per annum, July 16, 1943; administrative inspector, CAF-5, $2,000 per annum, April 1, 1944; and administrative inspector, CAF-6, $2,300 per annum, July 1, 1945. She received a pay increase to $2,670 per annum on July 1, 1945. Her separation from the service was due to a reduction in force.
Her duty station, beginning in October 1943 and until the end of 1945, was the Hub Hosiery Mills, Lowell, Massachusetts. She had formerly been at West Hanover National Fireworks in West Hanover, Massachusetts. The transfer from the one station to the other was made by a telephone call, pursuant to which she went to Boston and then to Lowell. A written order for the transfer was furnished the petitioner. The petitioner's railway fare for this transfer was paid by the Government and she was also given a per diem allowance to cover the transfer.
The Hub Hosiery Mills was manufacturing gas masks, and the petitioner's duties at its plant during the taxable year were to see that all of the terms of the contracts under which the gas masks were being manufactured were followed and that all equipment and material necessary was on hand to keep the plant in constant production. She had as many as eight employees working under her. The petitioner had to be on duty at 7 o'clock in the morning for six days of the week.
The petitioner, for 21 weeks during the taxable year, had a room at the Y.W.C.A. in Lowell at a total cost of $91.35. She had meals in Lowell on 112 days during that year at a total cost of $280. She expended during that year $64.26 in train fares between Gloucester and Lowell when she went to Gloucester over week ends to be with her husband and son. She drove her car back and forth daily between Gloucester and Lowell during 31 weeks of that year, at a total cost to her of $279. The total of the above is $714.61.
The distance by road between Boston and Lowell is about 47 miles. Neither is a suburb of the other nor of any other city. The only train service between Gloucester and Lowell is by way of Boston, and the schedule is such that it would have been impossible for the petitioner to have commuted daily between Gloucester and Lowell. The petitioner was able to commute daily by the use of her automobile only during the summer months, when the days were longer and the weather better than in winter.
The head of personnel in the Boston office of the Chemical Warfare Procurement District of Boston warned the petitioner that she might be transferred upon short notice and advised her not to make leases or other commitments which would inconvenience her transfer from one station to another.
The Commissioner, in determining the deficiency, disallowed a deduction of $717.91 described as traveling and living expenses, and explained that ‘expenses of room and board incurred at your place of employment and commuting expenses from your home to your place of employment are personal expenses and as such are not allowable deductions from income.‘
OPINION.
MURDOCK, Judge:
The Commissioner concedes that the expenditures were reasonable in amount and of the type that would be deductible in a proper case, but argues that this taxpayer's post of duty or employment was in Lowell, and the expenditures were personal or living expenses due to the petitioner's desire to continue to reside in Gloucester. Here, as in the cases of Commissioner v. Flowers, 326 U.S. 465, and Barnhill v. Commissioner, 148 Fed.(2d) 913, the taxpayer had but one job and, for personal reasons, rather than to prosecute or develop the business, chose to reside at a long established home away from this particular place of employment.
This case is not distinguishable in principle from the early case of Mort L. Bixler, 5 B.T.A. 1181. The petitioner in that case was the husband, while here the wife is the petitioner, but in each the alleged traveler was, so far as the record shows, the only one in the family gainfully employed. The employment in each case lacked permanence, but, on the other hand, was indefinite in duration rather than obviously temporary, in that it was not the sort of employment in which termination within a short period could be foreseen, as was the situation in Harry F. Schurer, 3 T.C. 544, and E. G. Leach, 12 T.C. 20. The suggestion or warning that there might be a change of station upon short notice does not justify extensive discussion, since the evidence fails to show how probable this possibility was, except for the fact that the petitioner actually remained on duty in Lowell from 1943 until the end of 1945. Other cases similar to this one involving employment for a limited, indefinite period are Ney v. United States, 171 Fed.(2d) 449; certiorari denied, 336 U.S. 967; George W. Lindsay, 34 B.T.A. 840; John D. Johnson, 8 T.C. 303; and Robert F. Green, 12 T.C. 656.
Commuting expenses have never been allowed as deductions. Frank H. Sullivan, 1 B.T.A. 93.
Decision will be entered for the respondent.