21 T.C. 630">*630 The1954 U.S. Tax Ct. LEXIS 303">*304 Commissioner determined a deficiency of $ 107 in petitioner's income tax for 1950. The deficiency is due to the addition to petitioner's net income as reported on his return of $ 665. This addition to petitioner's income is explained in the deficiency notice, as follows:

Line 2a increases income by $ 665.00 as amounts paid in lieu of subsistence is includible in gross income and does not constitute allowable deduction, and expenses incurred -- not away from home overnight in performance of duty is non-deductible in accordance with Section 23 (a) (1) (A) of Internal Revenue Code.

The petitioner by appropriate assignments of error contests this determination.

The issues for decision are: (1) Whether $ 665 paid petitioner in lieu of rations by the State of New Jersey is includible in gross income under section 22 (a) of the Code and, if so, (2) is the amount petitioner spent on meals while on duty deductible under the provisions of section 22 (n) or 23 (a) (1) (A) of the Code.

FINDINGS OF FACT.

Petitioner is an individual residing, during 1950 and currently, in Millville, New Jersey. He filed his 1950 income tax return with the collector of internal revenue for the first collection1954 U.S. Tax Ct. LEXIS 303">*305 district of New Jersey. He is married and has one minor son.

21 T.C. 630">*631 Since 1947, petitioner has been a New Jersey State Trooper, a member of the police force of that State. In 1950, he was paid $ 3,605, which included $ 665 given in lieu of rations. The aforesaid amount of $ 665 represents the amount that petitioner received as commutation of rations for the taxable year 1950. The petitioner has no record showing actual expenditures for meals during the taxable year 1950 but he spent at least that much for meals in 1950. The petitioner, on his income tax return for the taxable year 1950, deducted the amount of $ 665 from his salary in arriving at his adjusted gross income.

The petitioner maintains a home and family at Millville, New Jersey, a distance of 22 miles from his post of duty.

The New Jersey State Police force was organized under statute in 1921. Petitioner originally enlisted for 2 years in 1947, and has reenlisted at the prescribed 2-year intervals ever since. A State policeman may not withdraw from the force prior to the end of an enlistment without permission of the Superintendent of State Police, who is the commander of the force. If he withdraws without permission1954 U.S. Tax Ct. LEXIS 303">*306 he is guilty of a misdemeanor.

Petitioner, in a normal 30-day month, is on duty 390 hours and is off duty 330 hours. The 330 off-duty hours are composed of 6 days a month off plus 10 overnight passes of 15 hours each and 9 passes of 4 hours each. Except when on a day off, pass, or vacation (of 2 weeks a year) he must live at the Mays Landing, New Jersey station, to which he is assigned, and is not permitted to go to his home, which is 22 miles from that station. At the beginning of the month his schedule is posted. However, it is subject to change without notice and petitioner may not only have his time off changed but might be required to work more than 390 hours if the situation calls for it. His shifts vary and he may be on duty any time of the day or night. He is subject to call every day of the year and, when on a day off, pass, or vacation, must keep his station informed of his whereabouts.

Petitioner's duties include road patrol, patrol of rural farm areas, duties at the station house, and answering criminal complaints. The area patrolled by the Mays Landing station is divided into four parts and petitioner may be assigned to patrol any one of those parts. He may also, 1954 U.S. Tax Ct. LEXIS 303">*307 at the pleasure of his superiors, be assigned to an entirely new station at any time.

Prior to July 1, 1949, petitioner and other troopers were supplied with meals at their stations. If their duties prevented them from returning to the stations for a meal they would purchase it elsewhere and be reimbursed therefor. It took petitioner, and most other troopers who were out on duty, about 1 hour to make the round trip from their patrol areas to their stations and a half hour to eat. This system proved unsatisfactory because almost all troopers would return to 21 T.C. 630">*632 the stations at the same time thereby leaving the State practically unpatrolled for 1 1/2 hours during each mealtime. Efforts were made to prevent this but did not succeed because, if the troopers did not arrive at the station within the times prescribed for meals, whatever was served them would be cold. This method of feeding also proved to be expensive, requiring the State to employ added personnel and equipment and to supply and transport food to the various stations.

Beginning July 1, 1949, the aforementioned method of providing meals was discontinued and each trooper was given a monthly food allowance of $ 701954 U.S. Tax Ct. LEXIS 303">*308 in cash, calculated on the basis of $ 3 a day for each duty day (exclusive of days off). All officers, from lieutenant up, were given a different allowance, although the amount thereof is not apparent from the record. The troopers' allowance was paid in semimonthly payments of $ 35, which were included in the salary checks of petitioner and the other troopers. Federal income taxes were withheld from the food allowance but it was not regarded or accounted for as compensation, either in the State Police budget or by the State Civil Service Commission (which body determines the salary ranges for troopers). Rather, it was considered payment in lieu of rations. No food allowance was paid troopers while on vacation and, when necessary, adjustments were made in the allowance of a trooper to conform with actual days on duty.

On June 23, 1949, the Division of State Police, State of New Jersey, issued an operations order above referred to entitled "Maintenance Allowance," which stated as follows:

1. Beginning July 1, 1949 all members of the State Police will be paid a daily allowance for meals at rates approved by the Budget Commission and the Attorney General. Meals will not be furnished1954 U.S. Tax Ct. LEXIS 303">*309 by the state except as herein provided. Payment of the daily allowance for meals will not be made to recruits during their pre-service training.

2. Payment of the daily allowance for meals will be made for actual days on duty, excluding vacation and days on monthly duty leave. Payment will not be made in special cases where another allowance has been granted for meals and lodging. All special requests for allowance for food and lodging will be approved by the Superintendent.

3. A mess will be operated at the New Jersey State Police Headquarters to feed members of the pre-service and in-service training classes. Certain members of the State Police, may be authorized by the Superintendent to take meals at this mess. Deductions at rates to be established will be made from the daily allowance for all meals taken at this mess, except by recruits.

4. Daily allowance for meals will be paid by check. The first payment with be made on or about July 1, by separate check, in advance, for the period July 1 to July 15. Thereafter, the daily maintenance allowance will be included with the regular pay check. Each pay period will include allowance for meals for 12 days in advance, and adjustments1954 U.S. Tax Ct. LEXIS 303">*310 to conform with the actual time spent on duty will be made at stated periods. Absences on vacation or for other reasons for which the daily allowance for meals is not paid will be reported 21 T.C. 630">*633 immediately to the Personnel Section, Division Headquarters. Adjustments for absences on vacations or for other reasons for which the maintenance allowance is not paid will be made as soon as possible.

5. Reports of the actual days on duty by each individual will be made on the Individual Daily Report submitted through channels by Regions, Service Commands and Staff Sections. The reports will be submitted as provided in Operations Orders covering the preparation and submission of Operations Reports. Reports of the actual time on duty will be submitted for a monthly period and must reach Division Headquarters not later than the second day of the following month.

6. The following rules apply to the purchase of meals for members of the State Police: Meals may be procured by each individual at a suitable place in the nearest vicinity of assigned patrols, stations or headquarters. Station, District and Region Commanders will control the time allotted for meals. Members may be authorized1954 U.S. Tax Ct. LEXIS 303">*311 to eat at home by the immediate commander when such arrangements do not involve additional travel and loss of time.

7. Passes will be adjusted so that loss of time is not involved for meals, for example, members departing on duty leave at 12:00 noon or 1:00 P. M. will be required to take the noonday meal after departure and members reporting for duty at 8:00 A. M. will take breakfast prior to reporting, etc.

8. Payment of allowance for meals for duty leave voluntarily forfeited by a member will not be made. Authority to receive payment for meals for vacation voluntarily forfeited by members will be submitted to the Superintendent for approval.

9. Regulations governing the payment of daily allowance for meals in case of sickness and injury will be covered in later instructions.

10. The new method of feeding for a number of years has been recommended by members of the State Police. Official requests previously made were disapproved but approval has finally been granted on an experimental basis. Thus the responsibility is placed on every member of the State Police to retain this privilege. Abuses could easily result in a change of decision by the authorities responsible for state1954 U.S. Tax Ct. LEXIS 303">*312 expenditures.

11. All orders and instructions which conflict with this order are hereby rescinded.

In 1950, food allowances received by petitioner totaled $ 665. From this sum he was expected to purchase all of his meals while on duty and we find that he spent at least that amount for such purposes. Before going on patrol he and the other troopers were told at what times they should eat, and the times were staggered so that all the troopers would not be inactive at once. The policy followed was for petitioner and the other troopers to eat at public restaurants in their respective patrol areas. Their eating times were thereby reduced to about one-half hour. Petitioner was not permitted to eat at home while on duty though such permission might be granted to a trooper if it did not involve additional travel and loss of time.

OPINION.

Petitioner argues that the $ 665 received in lieu of rations in 1950 is excludible from gross income (section 22 (a) of 21 T.C. 630">*634 the Code) under the "convenience of employer" doctrine as enunciated in Jones v. United States, 60 Ct. Cl. 552">60 Ct. Cl. 552. There are numerous cases in which it has been held that subsistence and quarters1954 U.S. Tax Ct. LEXIS 303">*313 furnished in kind to an employee did not result in realization of income but the Jones case, supra, which dealt with cash allowances paid an Army officer in commutation thereof, appears to be the only one in which it has been held that such cash allowances were not income. This Court specifically distinguished that case in Gunnar Van Rosen, 17 T.C. 834, 839-840, to wit:

while the Jones case is authority for the exclusion from gross income by military personnel of cash allowances made to them for subsistence and quarters, it does not, in our opinion, require or justify an extension of the rule therein to similar allowances made to civilian personnel.

Petitioner maintains, however, that the New Jersey State Police force is organized and operated like a military organization, that his position is similar to that of a soldier, and that the Jones principle should therefore apply in this case.

However, with the exceptions that petitioner was required to live at his station and would be guilty of a misdemeanor if he withdrew from the force without the Superintendent's permission prior to the expiration of an enlistment, it seems to us 1954 U.S. Tax Ct. LEXIS 303">*314 that his conditions of employment were similar to those of the petitioner in Charles H. Hyslope, 21 T.C. 131, in which we held that the cash allowance for meals received by an Indiana State Trooper was includible in gross income under the authority of the Van Rosen case, supra. We do not think these differences in the facts in the instant case from those in the Hyslope case, supra, serve to make the cases distinguishable in principle. We feel that we must hold under the doctrine of the Hyslope and the Van Rosen cases, both supra, that the $ 665 here in issue is not excludible from petitioner's gross income but that it must be included under the provisions of section 22 (a) of the Internal Revenue Code. Section 22 (a) of the Code is printed in the margin. ¹ This conclusion is unaffected by the fact that New Jersey authorities regard the allowance not as compensation but as payment in lieu of rations, since State law or custom is not controlling in our determination of the issue which we have here to decide. 21 T.C. 630">*635 Barnhill v. Commissioner (C. A. 4), 148 F.2d 913; Joseph L. Doran, 21 T.C. 374.1954 U.S. Tax Ct. LEXIS 303">*315

We next consider whether petitioner's expenditures for meals while on duty are deductible under section 22 (n) (1) or (2), or 23 (a) (1) (A) of the Code, ²1954 U.S. Tax Ct. LEXIS 303">*316 or whether they are nondeductible under section 24 (a) (1). ³

Petitioner contends that he was performing the functions of a public office and that under section 48 (d) of the Code he therefore was engaged in a "trade or business." He argues that the cost of his meals are deductible as an ordinary and necessary expense of that trade or business under either section 22 (n) (1) or 23 (a) (1) (A). Assuming, arguendo, that petitioner's work is regarded as a "trade or business" under section 48 (d), we cannot agree with his further contention that the costs of his meals are deductible expenses. A somewhat similar argument was made in Louis Drill, 8 T.C. 902, where the taxpayer urged that the expense of evening meals eaten while he was working overtime was deductible because necessary to the earning of his overtime income since, had he not worked overtime, he would not have 1954 U.S. Tax Ct. LEXIS 303">*317 incurred such expense. In that case we rejected taxpayer's argument and held that the expense was essentially personal and therefore nondeductible. Sec. 24 (a) (1) of the Code. We are here of the same opinion.

Regarding deductibility of the cost of his meals as traveling expenses while away from home, under section 22 (n) (2) or 23 (a) (1) (A), it is first noted that petitioner's "home," for purposes of those Code provisions, was his station, not the home he maintained for his family. This is not altered by the fact that no accommodations 21 T.C. 630">*636 were available at the station for troopers' families. Raymond E. Kershner, 14 T.C. 168, 174; Bercaw v. Commissioner, (C. A. 4) 165 F.2d 521 (affirming Memorandum Opinion of this Court). While on duty petitioner ate all his meals at restaurants along his patrol route. However, his employment was inherently one that entailed traveling away from his station and returning thereto at the end of his shift and, consequently, the expenses for meals were not incurred while in a travel status away from home. Charles H. Hyslope, supra;Fred Marion Osteen, 14 T.C. 1261.1954 U.S. Tax Ct. LEXIS 303">*318 Our statement in the Hyslope case is here in point:

Such travel as he did was daily routine and, hence, cannot come within the scope of our decision in Kenneth Waters, 12 T.C. 414 (1949). As we said in Fred Marion Osteen, 14 T.C. 1261 (1950): "* * * The petitioner was in no essentially different position from the worker who is unable to have one of his meals at home." The fact that sometimes the meal which he ate in a restaurant was the evening one rather than lunch, or that occasionally it was both, does not, in any way, make the cost thereof anything other than a personal expenditure. See Louis Drill, 8 T.C. 902 (1947).

Decision will be entered for the respondent.