18 T.C. 649">*649 The respondent has determined a deficiency in income tax for the year 1948 in the amount of $ 45. The petitioner concedes that there is a deficiency of $ 15 but contests the determination of the remainder. The only question is whether petitioner was1952 U.S. Tax Ct. LEXIS 158">*159 in the status of traveling away from home in pursuit of his business so as to be entitled to deduction for the cost of meals, $ 200.25, under section 23 (a) (1) (A) of the Code.

FINDINGS OF FACT.

During the taxable year 1948 the petitioner's residence was located in Parsons, Kansas. He filed his return with the collector for the district of Kansas.

During 1948 and for 33 years before, the petitioner was employed by the Railway Express Agency as a railway express messenger. He performed all of his duties of employment on a train. His work involved handling parcel post mail, express packages, and baggage in transit on trains, sorting and separating them according to destination for either local transfer or through transfer by railroad. During 1948 he was assigned to trains running between Parsons, Kansas, and Oklahoma City, Oklahoma. Parsons was his home terminal, and Oklahoma City was his away-from-home terminal. Oklahoma City is about 207 miles from Parsons. One round trip from Parsons to Oklahoma City, and return, covers 414 miles, and two round trips, 828 miles.

The work schedule of the petitioner during 1948 was as follows: He made two consecutive round trips from Parsons1952 U.S. Tax Ct. LEXIS 158">*160 to Oklahoma City and return, and then laid over at Parsons for 44 hours and 50 minutes. 18 T.C. 649">*650 He resumed his duties after the lay-over for another two consecutive round trips. During the first round trip he began his duties at 2 a. m. and remained on duty for 6 1/2 hours until 8:30 a. m.; he was then released from duty for a rest period of 2 1/2 hours at Oklahoma City. He was on duty for 7 hours on the return run, until 6 p. m. when he went home. The elapsed time of the first round trip was 16 hours. On the second day he began his duties on the second round trip at 11:15 a. m.; he was on duty until 7:15 p. m. for 8 hours, when he was released in Oklahoma City for a rest period of 3 hours. He was on duty during the return run for 7 hours, from 10:15 p. m. until 5:10 a. m. of the third day, and he then returned to his home. He was on duty for almost 18 hours during the second round trip. On each round trip the petitioner was away from his home terminal overnight. He was off duty and at home in Parsons from 5:10 a. m. of the third day, for 18 hours and 50 minutes, during the remainder of that day, for 24 hours of the fourth day, and until 2 a. m. of the fifth day, or 44 1952 U.S. Tax Ct. LEXIS 158">*161 hours and 50 minutes. After the lay-over at Parsons, the above schedule of two consecutive round trips to Oklahoma City was repeated. The above-described work schedule is shown in detail in the margin. ¹

1952 U.S. Tax Ct. LEXIS 158">*162 The above schedule of work was the result of an agreement between the express and station employees' union and the Railway Express Agency under which employees, such as the petitioner, worked for a maximum of 200 hours per month at regular wage rates without any premium for overtime. Under the agreement, the type of work schedule which has been described above took the place of a work 18 T.C. 649">*651 schedule which had involved laying over in Oklahoma City for about 16 hours. The new work schedule adopted under the agreement saved employees the cost of hotel rooms and additional meals in Oklahoma City which formerly they had had to pay, without reimbursement, during a 16-hour lay-over in Oklahoma City.

During 1948 the petitioner performed his duties under the above schedule 89 times; that is to say, he made 178 round trips between Parsons and Oklahoma City, and he was away from his home terminal overnight for 178 nights. He purchased meals in Oklahoma City during the time he was off duty in that city as follows: Two meals, breakfast and lunch, were purchased during the off duty period of the first round trip; and one meal, dinner, was purchased during the off duty period of the second1952 U.S. Tax Ct. LEXIS 158">*163 round trip, a total of 267 meals. The average cost of each meal purchased in Oklahoma City was 75 cents. The petitioner's employer did not reimburse him for the expense of meals or a hotel room in Oklahoma City. The petitioner's total earnings during 1948, paid by the Railway Express Agency, amounted to $ 3,810.57.

Upon arrival at the away-from-home terminal, Oklahoma City, the petitioner was released from service for sufficient time to rest and eat before making the return trip to the home terminal, Parsons, Kansas. The round trip to Oklahoma City was not a "turn-around" run. Ordinarily, when the trains on which the petitioner traveled were running on schedule, the rest periods were 2 1/2 hours and 3 hours. The petitioner rested on a cot in a baggage car. If the petitioner's train did not depart from Oklahoma City on schedule and was held there long enough for the petitioner to take a hotel room, he went to a hotel. He was not reimbursed for hotel expense or the cost of any meals. During 1948, the petitioner incurred hotel room expense of $ 1.50 for one night, deduction for which has been allowed by the respondent.

The petitioner was away from home on business during 19481952 U.S. Tax Ct. LEXIS 158">*164 on 178 occasions when he purchased 267 meals at a total cost of $ 200.25.

The respondent disallowed deduction for meals expense for the following reason:

The cost of meals which you deducted in your 1948 income tax return is disallowed, as the deduction does not come within the provisions of Section 23 (a) (1) (A) of the I. R. C.

OPINION.

The question for determination is whether petitioner's expense for 267 meals is deductible under section 23 (a) (1) (A) of the Code which allows deduction of traveling expenses, "(including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business."

18 T.C. 649">*652 The petitioner claims that he was "away from home" in a travel status within the terms of section 23 (a) (1) (A); and that when he was released from duty in Oklahoma City on each outbound run, he was in the same status as other railroad operating personnel who rest at their away-from-home terminals before commencing the return trip to their home terminals.

The respondent contends that the expense of meals was personal expense and, therefore, under section 24 (a) (1), is not deductible. Cf. Louis Drill, 8 T.C. 902.

1952 U.S. Tax Ct. LEXIS 158">*165 The evidence shows, and we have found as fact, that the work schedule of the petitioner was not a "turn-around" run between two railroad terminals. Cf. Fred Marion Osteen, 14 T.C. 1261. On the contrary, at the end of each trip to Oklahoma City, the away-from-home terminal, the petitioner was released from duty for a rest period either 2 1/2 or 3 hours before commencing the return trip. A round trip involved traveling 414 miles, and the elapsed time was either 16 or 18 hours, depending upon the speed of the particular train making the trip. Also, the petitioner's work schedule required that the petitioner make two consecutive round trips, covering 824 miles, during which he was away from his home terminal during two nights out of three. The petitioner purchased three meals at his own expense in Oklahoma City, breakfast, lunch, and dinner, during the two rest periods there under the schedule of making two consecutive round trips. Under the facts, it is concluded that the work of the petitioner involved travel on business "away from home" within the provisions of section 23 (a) (1) (A). Kenneth Waters, 12 T.C. 414, 416.1952 U.S. Tax Ct. LEXIS 158">*166 The petitioner is entitled, therefore, to the deduction claimed for the entire expense of meals and lodging while away from home in pursuit of business under section 23 (a) (1) (A). The respondent has allowed deduction for lodging expense. We hold that the expense of meals is deductible also.

The respondent specifically considered the question of the deductibility of traveling expenses of railroad train employees in I. T. 3395 (1940-2 C. B. 64). He held as follows:

It is held that locomotive engineers and other railroad trainmen, who are required to remain at away-from-home terminals in order to obtain necessary rest prior to making a further run or beginning a return run to the home terminal are entitled to deduct for Federal income tax purposes the cost of room rental and meals while away from home on such runs.

The petitioner, ordinarily, did not have lodging expense at his away-from-home terminal because he was provided a cot in a baggage car to rest upon. But that is no reason for disallowing deduction of other actual expense. Our findings of fact show that the petitioner actually was in travel status and made stays away from home. It is true1952 U.S. Tax Ct. LEXIS 158">*167 that at the end of the first of the two required consecutive round trips, the 18 T.C. 649">*653 petitioner was able to and did go to his home in Parsons, Kansas, but that round trip commenced at 2 a. m., in the middle of the night, and during the stay at the away-from-home terminal the petitioner had the expense of two regular meals, breakfast and lunch. The second round trip was without question an overnight trip beginning at 11 a. m. of the so called second day, and ending at 5:10 a. m. of the so called third day, during which period the petitioner had the expense of dinner at his away-from-home terminal. We think it is too narrow a view of the facts not to regard both round trips as overnight trips. Furthermore, it was necessary for the petitioner to obtain rest at the end of the outbound run before starting upon the return run. We believe, too, that the determination of the question should not depend upon the length of the rest period. The round trips required 16 and 18 hours during which a rest period was necessary. The facts in this proceeding bring this petitioner within the ruling of the Commissioner, I. T. 3395, supra.

The respondent has not presented any reason for not1952 U.S. Tax Ct. LEXIS 158">*168 applying his ruling in this instance. He departs from it upon the theory that the rule set forth in Fred Marion Osteen, supra, controls the question here. But the facts in the Osteen case were such that it was concluded that the petitioner in that case "was in no essentially different position from the worker who is unable to have one of his meals at home." In the Osteen case, the taxpayer's regular work day was less than seven hours and although he worked on trains, as did the petitioner here, he was on a run which is known as a "turn-around" which did not involve any rest period or overnight run. The Osteen case, upon which respondent relies chiefly, is clearly distinguishable on its facts from this proceeding, and we reject the respondent's contention that it provides the controlling rule for decision of the issue presented here. Other cases cited by the respondent have been considered, but they are distinguishable on the facts.

Decision that there is a deficiency of $ 15 will be entered.