T.C. Summary Opinion 2009-118



                     UNITED STATES TAX COURT



             JESS WILLARD CANTERBURY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17393-06S.              Filed July 28, 2009.



     Jess Willard Canterbury, pro se.

     William F. Barry, Jr., for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.1   Pursuant to

section 7463(b), the decision to be entered is not reviewable by



     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 2003,
the taxable year in issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 2 -

any other court, and this opinion shall not be treated as

precedent for any other case.

     Respondent determined a deficiency of $2,768 in petitioner’s

Federal income tax for 2003.

     After the parties’ concessions, the issue for decision is

whether petitioner is entitled to a deduction of $4,866 for

travel expenses under section 162(a)(2).   The resolution of this

issue turns on whether petitioner’s “tax home” was in the New

York City metropolitan area (hereinafter, New York) or in or

around Jacksonville, Florida (hereinafter, Jacksonville).    We

hold that petitioner’s tax home was in New York and, therefore,

that he is not entitled to the deduction in issue.

                            Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     When the petition was filed, petitioner resided in the State

of Florida.

     In 2003 petitioner began working as a barge mate with

Reinauer Transportation Cos., L.L.C. (Reinauer).   At that time,

and at all relevant times thereafter, petitioner resided in

Jacksonville.

     As a barge mate, petitioner was responsible for the

operation and safety of the barge, including assuring that the
                               - 3 -

barge was transported in water deep enough to support the barge’s

draft.

     After being offered a job with Reinauer, petitioner reported

to New York on January 20, 2003, and proceeded to Reinauer’s

barge in Brooklyn, where he filled out paperwork for Reinauer and

began his first assignment.   Petitioner remained employed with

Reinauer until sometime in 2005.    Petitioner was not required by

Reinauer to reside in New York.    Throughout 2003, petitioner

lived in Jacksonville, where his daughter also lived.

     Following petitioner’s initial assignment, Reinauer’s

dispatcher called petitioner to tell him when and where to report

to his next assignment.   Once notified of his assignment,

petitioner reported directly to the barge whether stationed in

New York Harbor; Boston, Massachusetts; Portland, Maine;

Providence, Rhode Island; or Yorktown, Virginia.    When assigned

to a barge stationed in New York Harbor, which was the case for

most of his assignments,2 petitioner usually flew to Newark, New

Jersey, and took a cab to the barge.    The one occasion on which

the barge was stationed in Virginia, petitioner drove from

Florida to the barge.   When petitioner was assigned to a barge


     2
        Petitioner had 13 assignments during 2003. Six of the
assignments originated in New York Harbor; three in Portland,
Maine; two in Boston, Massachusetts; one in Yorktown, Virginia;
and one assignment, beginning Oct. 10, 2003, did not designate an
origin, but the barge floated through the Erie basin en route to
Albany, and thus that assignment most likely originated in New
York Harbor.
                               - 4 -

stationed in Maine, Massachusetts, or Rhode Island, Reinauer

arranged for petitioner to fly out of Newark; thus, petitioner

flew from Jacksonville to Newark in order to board the flight to

the barge location.

     When the barge was stationed outside New York Harbor,

Reinauer made arrangements for or reimbursed petitioner for the

cost of his travel from New York to the other port.   On the one

occasion when petitioner drove directly to the barge from his

residence in Florida, Reinauer did not reimburse him for his

transportation expenses.   Reinauer also did not reimburse

petitioner for his expenses in traveling between Jacksonville and

New York.

     In traveling from his residence in Jacksonville to New York

to report to his barge assignments, petitioner incurred airline

fares, cab expenses, and tolls of $4,866.

     Before working for Reinauer, petitioner worked in

Jacksonville as well as in other locations around the country.

During 2003 he chose to work for Reinauer in New York because the

pay was twice the rate for the same work in Jacksonville.    In

addition, in New York, a barge mate worked 2 weeks on and 2 weeks

off, whereas in Jacksonville a barge mate worked 2 weeks on and

only 1 week off.
                                - 5 -

                             Discussion

     Generally, expenditures for transportation to and from a

taxpayer’s workplace are considered personal expenses and are not

deductible.    Sec. 262; secs. 1.162-2(e), 1.262-1(b)(5), Income

Tax Regs.   However, travel expenses may be deducted under section

162(a)(2) if they are:    (1) Ordinary and necessary; (2) incurred

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

business.   Commissioner v. Flowers, 

, 470 (1946).

The reference to “home” in section 162(a)(2) means the taxpayer’s

“tax home”.3   Mitchell v. Commissioner, 

, 581 (1980);

Foote v. Commissioner, 

, 4 (1976); Kroll v.

Commissioner, 

, 561-562 (1968).

     As a general rule, a taxpayer’s principal place of

employment is his tax home, not where his personal residence is

located, if different from his principal place of employment.

Mitchell v. Commissioner, supra at 581; Kroll v. Commissioner,

supra at 561-562.    An exception to the general rule exists where

a taxpayer accepts temporary, rather than indefinite, employment

away from his personal residence; in that case, the taxpayer’s

personal residence may be his tax home.    Peurifoy v.


     3
        The vocational “tax home” concept was first construed by
this Court in Bixler v. Commissioner, 

, 1184 (1927),
and has been steadfastly upheld by this Court. See, e.g., Horton
v. Commissioner, 

(1986); Leamy v. Commissioner, 

(1985); Foote v. Commissioner, 

(1976); Kroll
v. Commissioner, 

(1968).
                               - 6 -

Commissioner, 

, 60 (1958).    Section 162(a) provides

that the taxpayer shall not be treated as being temporarily away

from home during any period of employment if such period exceeds

1 year.   Similarly, if a taxpayer does not have a principal place

of employment, the courts have determined that his residence may

be his tax home.   Johnson v. Commissioner, 

, 221

(2000).

     A taxpayer whose employer does not require him to travel may

not deduct transportation expenses, as they are more in the

nature of nondeductible personal commuting expenses.

Commissioner v. Flowers, supra at 473.    “The exigencies of

business rather than the personal conveniences and necessities of

the traveler must be the motivating factors.”

     This Court has differentiated between deductible and

nondeductible transportation expenses, holding that a riverboat

pilot’s transportation expenses between his residence and points

of assignment and return were nondeductible commuting expenses,

whereas transportation expenses attributable to traveling

directly from one assignment to another were deductible.       Heuer

v. Commissioner, 

, 953 (1959) (taxpayer commuted from

his residence to more than 100 points of assignment and from one

assignment to another), affd. 

(5th Cir. 1960).      The

distance a taxpayer commutes to work, no matter how far, still
                               - 7 -

represents nondeductible commuting expenses under section 262.

Commissioner v. Flowers, supra at 473.

     Although the subjective intent of the taxpayer is a factor

to be considered in determining tax home for purposes of

162(a)(2), this Court and others have consistently focused on

more objective criteria.   Foote v. Commissioner, supra at 3-4.

     Petitioner contends that his tax home was in Jacksonville,

as that was where he maintained a home and resided while he was

not working on Reinauer’s barges.    Respondent argues that

petitioner’s tax home was not his residence in Jacksonville, but

rather in New York at his principal place of employment.      We

agree with respondent.

     In January 2003 petitioner began employment as a barge mate

with Reinauer and reported to New York, where he completed

paperwork and received his first assignment.    Although each

assignment typically lasted a fortnight, petitioner remained

employed by Reinauer until 2005.    Thus, his employment with

Reinauer was not temporary within the meaning of section 162(a)

in that he was employed for a period in excess of 1 year.

     There is ample evidence in the record to support the

conclusion that New York was petitioner’s principal place of

employment.   For each assignment, Reinauer’s dispatcher called

petitioner directly to inform him when and where to report to the
                               - 8 -

barge for his next assignment, and petitioner reported directly

to the designated location.   Most of petitioner’s assignments

originated in New York.   If the barge was stationed in New York

Harbor, petitioner flew to Newark from Jacksonville to catch the

barge.   If the barge was north of New York, in Maine,

Massachusetts, or Rhode Island, petitioner flew to Newark,

boarded another plane, and flew to the location of the barge.

Reinauer reimbursed petitioner for his transportation expenses

between New York and the northern locations but did not reimburse

him for travel between Florida and New York.   For the one

assignment south of New York, in Virginia, petitioner drove his

personal vehicle to the barge at Yorktown and was not reimbursed

for such travel.   This pattern of reimbursement indicates that

petitioner’s travel from Florida to New York was regarded by his

employer as a home-to-work commute.

     Petitioner testified at trial that he took the job with

Reinauer because he received more pay for less work.     Indeed, he

earned twice as much working as a barge mate in New York compared

with working in Jacksonville; moreover, following a 2-week work

period, petitioner received 2 weeks off rather than only 1 week.

Petitioner’s daughter also lived in Jacksonville.   The rate of

pay, the time off, and the proximity to his daughter suggest that

it was personal choice and not business exigencies that dictated

the decision by petitioner to maintain his residence in
                               - 9 -

Jacksonville and commute to New York.     See Commissioner v.

Flowers, supra at 474.

     Consequently, because petitioner’s position with Reinauer

lasted more than 1 year, and further because most of his

assignments originated in New York, his principal place of

employment, and therefore his tax home, was in New York for the

relevant period.

     In conclusion, because petitioner was not “away from home”

within the meaning of section 162(a)(2), he is not entitled to a

deduction for expenses incurred for traveling between Florida and

New York.   Instead, his costs were in the nature of personal

expenses for commuting.   We thus sustain respondent’s

determination on this issue.

                            Conclusion

     We have considered all of the other arguments made by

petitioner and, to the extent that we have not specifically

addressed them, we conclude that they are without merit.

     To reflect our disposition of the disputed issue, as well as

the parties’ concessions,



                                            Decision will be entered

                                       under Rule 155.