8 T.C. 303">*303 The Commissioner determined a deficiency of $ 493.48 in income tax for 1943 by disallowing the deduction of $ 1,638.60 claimed as1947 U.S. Tax Ct. LEXIS 285">*286 "New York living expenses." Petitioner contends that, since he maintained his home in Cleveland and was stationed by his employer corporation in New York during naval service of the regular manager of the New York office, such expenses are deductible under section 23 (a) (1) (A) of the Internal Revenue Code.

8 T.C. 303">*304 FINDINGS OF FACT.

Petitioner, an individual, filed his individual income and victory tax return for the calendar year 1943 with the collector of internal revenue for the eighteenth district of Ohio at Cleveland.

On January 1, 1943, he was, and had been for twenty-four years, an employee of Johns-Manville Sales Corporation and was living in Cleveland, Ohio, with his family, which had been his home for twelve years. In 1942 he was division manager of the central division of the transportation department of his employer company, and had been for many years, with his headquarters and principal place of business in Cleveland, Ohio. Effective January 1, 1943, he was appointed and became acting sales manager of the eastern division of his employer company, with headquarters in New York City, replacing P. E. Redding, who had been granted leave of absence while in active service1947 U.S. Tax Ct. LEXIS 285">*287 as lieutenant in the Navy. Petitioner was to serve in this position so long as Redding was absent and petitioner's services were satisfactory, and petitioner was promised by his employer that he would be returned to Cleveland to resume his old job there at any time that Redding came back from the Navy, but it was not known how long that would be.

During all of the year 1943 New York was petitioner's principal place of business and he was there continuously throughout that year, except for about 55 or 60 days when he was away on different business trips for his company, some of which included Sundays and holidays. He had no vacation in 1943. His office in New York was at 22 East Fortieth Street, and he lived at the Hotel Sheraton for 17 days in January and the remainder of 1943 at the Hotel Shelton. His wife and a daughter aged 23, who were the other members of his family, did not accompany him to New York, but continued to live through all of 1943 at 2049 Cornell Road, Cleveland, Ohio, in which rented premises (he did not own a home) petitioner and his family were living prior to his New York assignment, and petitioner continued to claim these premises as his home. Petitioner's1947 U.S. Tax Ct. LEXIS 285">*288 daughter in 1943 had a good job as inspector with Thompson Aircraft, but his wife was not employed. In 1944 petitioner's wife and daughter, who continued to live together, moved to Forest Hills Boulevard in Cleveland, but they had not moved to New York as late as November 4, 1946, the date of hearing in this proceeding. Petitioner and his wife still lived as man and wife, but petitioner has continuously to the date of this hearing had New York as his principal place of business since he went there on January 1, 1943, to assume the position of acting sales manager of the eastern division, an assignment which he considered "temporary and indefinite," for while he was still serving in this capacity, effective January 1, 1944, he was given what he regards 8 T.C. 303">*305 as a "permanent assignment" in New York, to wit, manager of the eastern division of the transportation department of his company, with headquarters in New York, and shortly thereafter he was made regional manager of the transportation department, with headquarters in New York, which was in the nature of a promotion at an increased salary.

During 1942, when petitioner's principal place of business was in Cleveland, if he traveled1947 U.S. Tax Ct. LEXIS 285">*289 out of Cleveland on business his employer reimbursed him for his travel expenses, including meals and lodging; and in 1943, when New York was his principal place of business, when traveling out of New York on business his employer likewise compensated him for such expenses.

Petitioner's employer paid his travel expenses to New York City when he took his new job there in January 1943, and also paid for his meals and lodging in New York for the first sixteen days of January 1943, but for the remainder of 1943 petitioner paid for all his meals and lodging expenses incurred in New York, and he was not reimbursed by his employer for any of these expenses.

Petitioner claimed in his income tax return for 1943 a deduction of $ 2,132.60, itemized in schedule G attached thereto as "expenses incurred in conducting business for which I am not compensated." Of the amount of $ 2,132.60, the amount of $ 1,638.60 was claimed as "New York Living Expenses -- 1943." The difference between $ 2,132.60 and $ 1,638.60, or $ 494, was claimed as business expenses over and above expense reimbursements from the employer. Petitioner contends that his New York living expenses in 1943 amounted to $ 2,213.95, 1947 U.S. Tax Ct. LEXIS 285">*290 but that he deducted $ 575.35 from that amount for the estimated cost of meals had he eaten them downtown in Cleveland. Of the amount of $ 1,638.60 claimed as "New York Living Expenses -- 1943," $ 98.40 was attributable to laundry, pressing, and cleaning. The Commissioner disallowed the claimed deduction in the amount of $ 1,638.60.

For the days that petitioner was traveling outside New York City in 1943 he did not claim on his income tax return any New York City living expenses, except rent, which was on a monthly basis, and some laundry, cleaning, and pressing expenses. During 1943 petitioner was absent from New York City on several business trips, aggregating throughout the year approximately 55 or 60 days, but the evidence does not show how much involved trips to Cleveland and back to New York City.

In his income tax return for 1944 petitioner made no claim for deduction for living expenses in New York City.

In 1942 and 1943 petitioner's sole income was salary paid by Johns-Manville Sales Corporation, $ 6,989.66 for 1942 and $ 8,130.55 for 1943.

8 T.C. 303">*306 OPINION.

Were the expenditures for meals and lodging incurred by petitioner in New York City during the year 1943 deductible1947 U.S. Tax Ct. LEXIS 285">*291 from his gross income as "traveling expenses * * * while away from home in the pursuit of a trade or business," deduction for which is authorized in section 23 (a) (1) of the Internal Revenue Code, or were they to be regarded as personal, living or family expenses, deduction of which is prohibited by section 24 (a) (1) of the code? This is the sole issue for our determination.

Petitioner has filed no brief, but in his petition, filed herein on July 25, 1945, he cites these cases in support of his contention that such expenditures were deductible: Harry F. Schurer, 3 T.C. 544; Wallace v. Commissioner (C. C. A., 9th Cir.), 144 Fed. (2d) 407; Flowers v. Commissioner (C. C. A., 5th Cir.), 148 Fed. (2d) 163.

Shortly after the filing of his petition citing these cases, the Supreme Court, on January 2, 1946, 326 U.S. 465">326 U.S. 465, reversed the opinion of the Fifth Circuit in the Flowers case, supra, and affirmed this Court's decision that the expenditures there involved were not deductible. So, while the petitioner in this case relies upon the opinion of the Fifth1947 U.S. Tax Ct. LEXIS 285">*292 Circuit in the Flowers case, the respondent in his brief bases his contrary argument largely upon the Supreme Court's opinion in the same case.

It is sometimes difficult to differentiate between the shade of existing differences in applying applicable provisions of the Internal Revenue Code and the regulations of the Commissioner governing same. Our decision, therefore, must ordinarily be based upon the principle enunciated and the rule of interpretation evolved from cases where the facts are similar.

Briefly, the facts in the Flowers case were these: The taxpayer was a lawyer, whose home was in Jackson, Mississippi. He was general counsel for a railroad company, with his principal place of employment in Mobile, Alabama, but he continued to maintain his home in Jackson and deducted from his gross income expenses incurred for meals and lodging while in Mobile and traveling expenses to and from there to Jackson, Mississippi.

The Fifth Circuit, in the Flowers case, held that "home" in section 23 (a) (1) of the code meant the place of the taxpayer's principal abode, and therefore that expenses incurred in Mobile were deductible.

The Supreme Court's opinion in the Flowers1947 U.S. Tax Ct. LEXIS 285">*293 case, reversing the Fifth Circuit, pointed out that the Circuit Court of Appeals for the Fourth Circuit, in Barnhill v. Commissioner, 148 Fed. (2d) 913, had made a contrary ruling, and in pointing out the conflict between these decisions, it said:

8 T.C. 303">*307 The meaning of the word "home" in § 23 (a) (1) (A) with reference to a taxpayer residing in one city and working in another has engendered much difficulty and litigation. 4 Mertens, Law of Federal Income Taxation (1942) § 25.82. The Tax Court and the administrative rulings have consistently defined it as the equivalent of the taxpayer's place of business. See Barnhill v. Commissioner, supra (C. C. A. 4). On the other hand, the decision below and Wallace v. Commissioner, 144 F.2d 407 (C. C. A. 9) have flatly rejected that view and have confined the term to the taxpayer's actual residence. See also Coburn v. Commissioner, 138 F.2d 763 (C. C. A. 2).

Immediately following this quotation, the Supreme Court then said:

We deem it unnecessary here to enter into or to decide this conflict. 1947 U.S. Tax Ct. LEXIS 285">*294 The Tax Court's opinion, as we read it, was grounded neither solely nor primarily upon that agency's conception of the word "home". * * *

The opinion then holds that the Tax Court's decision was based, and correctly so, upon a finding that the expenditures in question had no relation to the conduct of the railroad company's business, and that in order to be deductible under Treasury Regulations 103, section 19.23 (a)-2, construing section 23 (a) (1) (A), such expenditures must (1) be reasonable and necessary traveling expenses; (2) incurred "while away from home," and (3) incurred in pursuit of a business, which means there must be a direct connection between the expenditures and the carrying on of the business of the taxpayer's employer, and that such expenditures must be necessary to the employer's business or trade. If any one of these three requirements is lacking, the expenses are nondeductible. It is the third requirement which the court finds lacking. Furthermore, the Supreme Court held that section 23 (a) (1) (A), authorizing deduction for traveling expenses away from home, must be contrasted and construed with section 24 (a) (1) of the code, which disallows deductions 1947 U.S. Tax Ct. LEXIS 285">*295 for personal living or family expenses, and also interpreted in the light of section 19.23 of Regulations 103, supra, and, when this is done, the conclusion is reached that the Tax Court in the Flowers case correctly held that the expenditures in issue were nondeductible living and personal expenses.

The holding in the Flowers case is applicable to this case; the essential facts are the same. In both cases the taxpayer's home was in a different city from his principal place of business, and in both the employer, and not the employee, designated, determined, and required where the employee's principal place of business should be, and in both it was the employee, and not the employer's decision, that caused a home to be maintained by the employee in a different city from that of his work. That the work of one employee was of a legal nature and the other that of a business executive is of no consequence. In both cases the employer received no benefit and was in no sense profited by reason of the employee's maintenance of a home in a different city from his principal place of business. In the pending case, during all of 8 T.C. 303">*308 1943, the taxable year in question, petitioner's1947 U.S. Tax Ct. LEXIS 285">*296 home was in Cleveland, but during that entire year his principal place of business was in New York City; that was his post of duty, and that is where the business of his employer demanded and required that he should be. True, it cost him more and his living expenses were greater, since he maintained a home in Cleveland for his wife and daughter while he was staying in New York, but that was his choice, not the choice or requirement of his employer. The additional expense of maintaining a home in Cleveland contributed nothing to the employer's business. As was said by the Supreme Court in the Flowers case:

The added costs in issue, moreover were as unnecessary and inappropriate to the development of the railroad's business as were his personal and living costs in Jackson. They were incurred solely as the result of the taxpayer's desire to maintain a home in Jackson while working in Mobile, a factor irrelevant to the maintenance and prosecution of the railroad's legal business. * * *

We do not think the fact that petitioner's first assignment in New York was as acting sales manager makes any difference. True, it was for an indefinite period until Redding, whose place he1947 U.S. Tax Ct. LEXIS 285">*297 took, retired from the Navy, but the evidence showed that it was not known how long this would be, and the promise by petitioner's employer that upon Redding's return petitioner would be returned to his old job in Cleveland we do not deem material. The position of acting sales manager of the eastern division required, and it was accepted with the understanding that so long as petitioner held it his headquarters and principal place of business would be New York City. Employment of indefinite or indeterminate duration is not the same as temporary employment. See Arnold P. Bark, 6 T.C. 851.

Petitioner testified that when he was given the New York assignment, he was told that he would also continue assisting the manager at Cleveland, but there is no evidence that petitioner did, in 1943, assist the manager at Cleveland or perform any duties in connection with the Cleveland office. There is no evidence that in 1943 petitioner received any salary or compensation except that for services performed as acting sales manager of the eastern division, with headquarters in New York City, and there is no evidence that petitioner had any business office, desk, 1947 U.S. Tax Ct. LEXIS 285">*298 or employment in Cleveland in 1943, and the burden of proof is on him to so show if such was a fact. George F. Thompson, 6 T.C. 285.

The evidence did disclose that petitioner was absent from New York at different times and on different business trips in 1943, aggregating some 55 or 60 days during the entire year, some of which included holidays and Sundays, and some of these trips were to Cleveland, but it is not shown how many or what duties of his employer, if any, were performed there, but if petitioner had shown that he assisted the manager at Cleveland in 1943, that fact would not entitle him to deduct 8 T.C. 303">*309 expenses incurred in his principal place of business in New York City. See S. M. R. O'Hara, 6 T.C. 841.

The Harry F. Schurer case, supra, cited by petitioner, was decided prior to the decision by the Supreme Court in the Flowers case and, furthermore, the facts are materially different from this case. Schurer was a journeyman plumber and he served on temporary employment in several different places during the taxable year, and upon the termination of the employment in each instance returned 1947 U.S. Tax Ct. LEXIS 285">*299 to his home. Petitioner in this case remained in New York and up to the date of the trial had continuously had his principal place of business in New York since first going there on January 1, 1943.

In the O'Hara case, supra, it was said:

We have long held that section 23 (a) (1), supra, may not be availed of to secure a deduction from gross income for "traveling expenses" paid or incurred by a taxpayer while at his principal place of business, post of duty, or principal place of employment. Mort L. Bixler, 5 B. T. A. 1181; Barnhill v. Commissioner, supra;George W. Lindsay, 34 B. T. A. 840; Jennie A. Peters, 19 B. T. A. 901; William Lee Tracy, 39 B. T. A. 578.

Under the facts in this we hold that the expenditures for which petitioner claims deduction are not allowable as traveling expenses, but that they constitute personal living or family expenses for which deduction is not permitted under the code.

Decision will be entered for respondent.