it and the tax court sustained the irises disallowance on the basis that they were not away from home because they had all business connection to their home countries before the states there's no evidence that congress intended to use this in the term home to have any unusual or special meaning beyond its common not the three points as to why the tax should be reversed first the court found that a prior business connection to the tax payers you forty five decision does not apply and even if the business actions he's tested did apply it was not by the taxpayers in this particular case so let's take those in order the commissioner or has argued in this require preexisting business relationship with the home what they're getting at is that the notion that there has to be some logic to the commune but i think the ninth circuit formulate said rather well in the coombes case and i wonder whether this isn't a definition that you would accept is that the taxpayer's home can be its usual place of abo that it shifts to the new location of a shift to the vicinity of a new job if the job is a permanent job or a job of indefinite duration so that you don't have someone who lives far away who says great i'm going to keep my house because i like caring because i want to be here for you know recreational purposes and i'm going to deduct all my travel expenses that that's clearly the commission's concern but if you have this the rare or was satisfied or rip compelled to say jack here here i think you may have a similar problem which is that the statute requires for the travelling expenses to be deductible that they be incurred in the pursuit of a trade or business and here i think you've made a good case or you know a case that one reason or you could agree with that the student work and travel program requires these students to be away from home but not in the pursuit of their trade or business as much as in pursuit of a cultural exchange and i wonder what your responses to that i would say t recognized that expenses the substituted by the exigencies of an employee's business are to doctor so in this particular case when these individuals come over here as employees under the requirement that they that they have if they are working in a trade or business or here that is in pursuit of their trade or business as an employer i'm not sure i'm catching a distinction that you're trying to make because the employer here hires many people who are not part of the student work and travel program and i understand that the student travel program requires that there be some employment and that it be far from home that's the whole point but it's not the m lawyers i didn't see or even the trade or business of the student that commands it it's the idea that you know the state department in the exercise of it being a made a big lifeguard being a waiter all require presence so if the employers do wish to employ these they have to meet the requirements of the program which require them to obtain  summer camp in the state in which the summer camp is located requires that there be some you know youth employment waiver or permission obtained in my state and that and my child gets that permission so that they can work as an under age worker in this salutary temporary work with the with the under your principal with the travel expenses of going to and from the state where that camp you from six or three of second twelve ninety five they recognize that a taxpayer discretion has to worry lives is severely limited or nonexistent when employed for a temporary time and for that reason his choice of residence considered to be a business a personal reason what if i'm a adjunct professor hired from year to year is a year long less than a year nine months is that temporary that would be time when i look and i like to live in paris because it's great in the summer time and then every school year i come and i re up in washington d c and i deduct the expenses of flying to washington and having a place to live here and going back to paris for the summer time under he was a spring or justice of wheezy and he was required to maintain a residency in his home district while he became a supreme court justice of louisiana they said that is sufficient and they allowed that's a business reason and  on that basis alone we believe we would win recognizing that you do not have to accept our definition college students in two thousand and twelve when they spend their summers working as a lifeguard in the most constant tells as a housekeeper and salmon island in washington state and a waiter and montauk new york they seek to exact their travel expenses and in the case of this or conway some living expenses that he incurred during that employment the general rule in the internal revenue code is in section two two sixty and that provision says that personal living and family expenses are not deductible the idea is that one's basic living expenses something to eat a place to live and a place to sleep are to be paid for with taxable income that's the general rule but the exception addition here is in section one sixty two two which place and work and another for business reasons or residences due to the requirements of his or her trade or business the supreme court has held that action is a matter of legislative grace and must be strictly business ties to both candidates travel expenses in connection with a temporary employment location that seems to me to swallow up the entire purpose for congress in an act in this provision which is if you have someone who really doesn't have a principal place of business often people who are self employed and work in a lot of different places and orchestra extra you know the bridge construction expert goes wherever the bridges been built on his or her own dime you know forensic expert who travels around the country testifying cases and doesn't have a business reason to go back home but needs a home somewhere that's i thought the core of what this provision is about so i'm having trouble reconciling that with the tax court's embrace of handso e students who were here for the summer worked in one place for four months and the government's position is that where they worked in wisconsin and washington state and in new york was their principal place of this mess now i think what you're talking about  at things like do they perform work there how often are they there those kinds of things and then there is another class of taxpayers which mean clude some of the people that you're thinking about who do not in fact have most of us to think of as a permanent key is that the tax court and most courts of appeals to address the issue have held that home for purposes of this deduction means a principal place of business and this court and your work embrace this concept without looking at the away from home  phrase and said it a man's living expenses while he is carrying out his business at his regular place of business or personal and not business expenses and the supreme court although it if dodge this question of what away from home means and flowers got there in essentially the same way the court said that business trips are to be identified in relation to the business demands and the traveler's business headquarters now and the flowers the taxpayer lived in jackson but work balance the taxpayers business headquarters and the court said that you know the travel expenses were not allowed looking at where he actually worked it's clear from the many courts would fight and from the courts who haven't reached the same result through other provisions of the statute is that the only business expenses deductible are those for travel and living away from the taxpayers principal or regular place of business again the only regular place of business for these somebody wants to be you know a dancer professional dancer and they're in school in paris and training and then they get a break to go and dance in atlanta and they travel and do that work and then go back home hoping for you know the next gig and the dread and the next gig you know cyrus that person could not deduct their travel expenses even though because because by your logic the place they went even temporarily in atlanta was a business because they weren't working when they were in paris home so there  is lately a question of fact for the original court to determine so in your example you know we would have questions about how long the dancer who lived in paris worked somewhere else where else did he or she work during the year positing that it was that it was short term and it was for you know the season of a particular shot and that because that's you know the way you get these games if you're not in the core so if if that person did one season and new york and another season and and a third season in a row let's say then there are cases that look at identifying where that person's principal place of business is and those cases look at things like how many days are they and each location how much of their income do they earn from each job and that kind of thing and so that could come into play with your head what if they don't have a principle as a business they just do sorry out  service of the first book to whether they indeed have a residence something that they're incurring duplicate living expenses that's where that comes into play is this question of are they incurring duplicate living expenses and if they're not if there's somebody who is truly general who has no home as most of us would think of that then they are never away from home because they don't have to begin with and their sponsors are not adoptable there's a number of cases about eight hundred workers that come into that that's not what we have here and why not because there's not proof of duplicative living expenses or because they're living with their parents or because their home country homes are not their homes and i mean i'm just trying to probe why you say the principal is a business is a way out a temporary job where i think there are a lot of other examples i can think of where they wouldn't have a principal place of business based on such a short term stat and their home would be issued carry those that they did it seems odd to me i mean i know this is very hard to get all the examples but if my ballerina for example living in paris you know for a period of two or three years she only gets that one gig in atlanta she still waiting and working and conceptually under the tax law can you distinguish the situation so there are close questions here and it looking at the cases there are times when courts have said you know somebody who was working somewhere for eight months out of  just want to make sure that i get this question now which is what about just saying the taxpayers did not incur these expenses in the pursuit of the trade or business but rather in pursuit of a cultural exchange so this is the point that i was going to turn to  you for for bringing us to that point on in this this record is fairly limited and we don't actually have any information about the intent of these particular tax payers but  but i think this kind of a program does invite that question unfortunately it's not in the record here but what i will say is that there is no court of appeals that has held that for  temporary employment there is an exception from the flowers test and there's no suggestion that in the supreme court's opinion and flowers that it applied only to the right employment the first circuit certainly reached that conclusion and han s and the seventh circuit in wilbert was dealing with an airline mechanic who was laid off from his work and minneapolis and then worked a number of temporary gigs around the country was held to not be able to deduct his business and preparing for argument we in fact confirmed that the state department does not interpret this provision to require them to have a second place to live in their home countries while they're here and indeed if that was the whole thing it would have some consequences for others you're saying this is their principle this is a business but they can't stay long term they're prohibited from staying in these jobs long term yes that's true you're on his back against the notion that this is indefinite or permanent think it makes sense to me when you're moving to in an indefinite or permanent job it's a little harder to compute when you're moving for a job that everybody knows is short term to then call that a principal place of business so the idea of the deduction again is to provide relief for the typical taxpayer who does have a living expenses in one place as required by work to move somewhere  there there's no requirement in the immigration law that they do that secondly any of those requirements were not directly connected to the trade or business of being away for a waiter or a housekeeper and  someone that has business reasons but that's it is a matter of the aged care for these traveling people that this and that this provision is to do that nobody require that they could live on the street side for all anybody cares i mean that's the sum of these sad cases where it's taxpayer has business reasons to maintain their original then there's reason for them to receive a deduction for having to go somewhere else for having to maintain a second home  purposes of business where someone has no business ties and chooses to go somewhere else to work for a few months that's an entirely different situation from what congress was anticipating again the general rule is the taxpayers are responsible for paying their living expenses with taxable income and a taxpayer chooses to live in paris and then take a job in chicago for a few months that's the taxpayer's choice it's not the business reason that's motivating them short here the supreme court says to this rule that rule and flowers the tax court hasn't grafted an exception which allows a deduction for expenditures of this type and then it says the respondent and i can use the commissioner does not in the present case challenge the validity of this exception to the general rule and then goes on to find that the work in that case was not in fact temporary so in this case it's it in is a matter of the commission not challenging that rule and the supreme court apparently assuming for purposes of that case that it applied and in not having to reach that issue because it's on the  anything over a year will not be considered temporary so that a temporary rule exists and the question is why does it exist why is there an exception to the business exigencies to us and the reason is because and to look at business reasons to determine personal versus business indefinitely in determining but in the temporary situation that same inquiry is not necessary ok so when this when they get going back to the and that's the reason why it got bollixed up in its decision the fact of the matter is there is no business there is no business connection which is required here the travel is for business the crucial tries position but the problem i have with it is that basically if i live in des moines and i just think i'm going to go you know wait tables at high end restaurants in similar cisco for six months in a layer for six months in miami for six months in new york for six months because i think that would be fine i get to deduct all my living expenses and travel expenses during hither and yon and then i go back to my home and to mourn and that doesn't seem like what the no i think the whole point the core point of this purpose then was for someone who works on contract hither and yon and doesn't have a logical place to go be in your work but wants to work and maybe there's you know work that is its nature only available to far flung like the dancer who was dancing in theaters around the world versus work that hey actually you could do it in your home and just stick with it and the only reason you're going around is because you can be fun so it is hard to see