United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 2018 Decided November 2, 2018 

No. 17-1204 

RICHARD LILJEBERG, 

APPELLANT

v. 

COMMISSIONER OF INTERNAL REVENUE SERVICE, 

APPELLEE

Consolidated with 17-1205, 17-1207 

On Appeal from the Decision 

 of the United States Tax Court 

Leigh D. Roadman argued the cause for appellants. With 

him on the briefs were Daniel T. Hartnett and Steven S. Brown. 

Norah Bringer, Attorney, U.S. Department of Justice, 

argued the cause for appellee. On the brief were Richard 

Farber and Regina S. Moriarty, Attorneys. Travis A. Greaves, 

Deputy Assistant Attorney General, entered an appearance. 

Before: ROGERS and PILLARD, Circuit Judges, and 

SENTELLE, Senior Circuit Judge. 
2 

 Opinion for the Court filed by Circuit Judge ROGERS. 

 ROGERS, Circuit Judge: This is an appeal from the 

decision of the Tax Court denying a deduction on income 

earned by three foreign nationals who participated in the State

Department’s Summer Work Travel Program in 2012. The 

Internal Revenue Service denied appellants’ claimed tax 

deduction for travel and living expenses incurred “while away 

from home in the pursuit of a trade or business,” 26 U.S.C. 

§ 162(a)(2). The Tax Court affirmed because appellants’ travel

and living expenses were not so incurred but arose from a 

personal choice to participate in the Summer Work Travel 

Program rather than the demands of their (temporary) 

employers. We affirm. 

I. 

The State Department administers the Exchange Visitor 

Program, which designates sponsors “to provide foreign 

nationals with opportunities to participate in educational and 

cultural programs in the United States and return home to share

their experiences.” 22 C.F.R. § 62.1(b) (2012); see Mutual 

Educational and Cultural Exchange Act of 1961, Pub. L. No. 

87-256, 75 Stat. 527 (codified as amended at 22 U.S.C. 

§ 2452). One component of the Exchange Visitor Program is 

the Summer Work Travel Program, which provides “foreign 

students who are enrolled full-time and pursuing studies at 

accredited post-secondary academic institutions . . . with the 

opportunity to work and travel in the United States” for a 

period of up to four months, during their summer vacations. 22

C.F.R. § 62.32(b), (c). Income earned is subject to federal 

income taxes. 26 U.S.C. § 871(b)(1), (c). To participate in the 

Summer Work Travel Program, a student must obtain a 

nonimmigrant visa, known as a “J visa,” 22 C.F.R. § 62.1(b), 

which, as relevant here, is issued to “an alien having a residence 
3 

in a foreign country which [the person] has no intention of 

abandoning,” 8 U.S.C. § 1101(a)(15)(J). 

Appellants are foreign nationals who participated in the 

Summer Work Travel Program in the summer of 2012. 

(1) Richard Liljeberg is a citizen of Finland who worked as a 

lifeguard at Noah’s Ark in Wisconsin as part of the Program. 

Liljeberg sought to deduct “$995 for airfare to and from the 

United States, $500 for the cost of the program, $35 for the cost 

of his J-1 Visa, and $170 for insurance.” Before participating

in the Program, he was a full-time university student in Finland, 

where he lived with his mother and worked at a company called 

ISS Security. Upon returning to Finland, Liljeberg “lived alone 

in [a] rental home” and “did not return to work at ISS Security.” 

(2) Anna Zolotareva is a citizen of Russia who “worked as a 

housekeeper at the Roche Harbor Resort in San Juan Island, 

Washington.” She sought to deduct $1,100 in travel expenses. 

Before participating in the Program, Zolotareva was a full-time

university student in Russia, where she lived with her parents. 

Upon her return to Russia, she lived with her parents. (3) Enda 

Conway is a citizen of Ireland who “worked as a server at 

Gosman’s Dock Restaurant in Montauk, New York.” He 

sought to deduct $2,000 in travel expenses and $1,157 in meals 

and entertainment expenses. Conway was a full-time 

university student in Ireland in 2012 and “maintain[ed] his 

home in Ireland” in 2012 by “pay[ing] his phone bill, gym 

membership, and money to his mother.” Conway did not work 

in Ireland in 2012. 

The Internal Revenue Service (“IRS”) issued notices of 

deficiency to appellants for their 2012 federal income taxes, 

reflecting denials of the claimed deductions under 26 U.S.C. 

§ 162(a)(2) for travel and living expenses incurred as a result

of their participation in the Summer Work Travel Program. 

Appellants petitioned for redetermination of their deficiencies, 
4 

and the Tax Court affirmed. Appellants’ 2012 expenditures for 

travel and living expenses were not “away from home” under 

§ 162(a)(2), the Tax Court ruled, because they lacked “a 

business reason to maintain a distant, separate residence” away

from their principal place of employment and so could not 

claim a personal residence as a tax home. Tax Ct. Op. 24 

(citing Wirt v. Comm’r, 55 T.C.M. (CCH) 1369, 1371 (1988); 

Tucker v. Comm’r, 55 T.C. 783, 786 (1971)). As “full-time 

students from abroad who came to the United States to work 

for a single summer before returning to their home countries,” 

appellants had no “business connections with their respective 

home countries.” Id. at 26. Nor did their status as “J visa” 

holders render them at home in their home countries for 

purposes of the deduction inasmuch as a person’s “residence” 

under immigration law is “not necessarily coterminous” with a 

taxpayer’s “home” under § 162(a)(2). Id. at 27. Noting that 

there was “no requirement at law that [a Summer Work Travel 

Program] participant maintain a second abode in his home 

country,” the Tax Court concluded appellants did not incur 

additional travel and living expenses “because of the 

exigencies of [their] trade or business.” Id. at 28. Rather, 

“those expenses were by their personal choice and not by a 

dictate of their employers or the law.” Id. at 29. This appeal 

followed. 

II 

Appellants contend they were “away from home” under 26 

U.S.C. § 162(a)(2) based on a private letter ruling by the IRS 

and IRS guidance purportedly indicating that foreign students 

holding student visas may deduct travel expenses. They also 

point to the requirement that “J visa” recipients have an abode

in their home countries which they have “no intention of 

abandoning.” Appellants’ Br. 33. Appellants further contend 

that because their employment was temporary, they were not 
5 

required to show their expenses were incurred due to business 

exigencies. But even if required to make such a showing, 

appellants contend they satisfy the business exigencies test 

because the travel and living expenses were incurred to meet 

the requirements of the Summer Work Travel Program and to 

work in the United States. 

This court reviews decisions of the Tax Court “in the same 

manner and to the same extent as decisions of the district courts 

in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1). 

The Tax Court’s legal determinations are reviewed de novo; its 

factual findings and “disposition of mixed questions of law and

fact” are reviewed for clear error. Jombo v. Comm’r, 398 F.3d 

661, 663 (D.C. Cir. 2005). Tax deductions are strictly 

construed because they are “a matter of legislative grace”; “the 

burden of clearly showing the right to the claimed deduction is

on the taxpayer.” INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84 

(1992). The Tax Court’s interpretation of what § 162(a)(2) 

requires a taxpayer to show is a legal conclusion subject to de 

novo review, cf. Rogers v. Comm’r, 783 F.3d 320, 324 (D.C. 

Cir. 2015), whereas the determination of whether a taxpayer 

met that burden is reviewed for clear error, see Green Gas Del. 

Statutory Tr. v. Comm’r, 903 F.3d 138, 145 (D.C. Cir. 2018). 

The Internal Revenue Code provides that “[e]xcept as 

otherwise expressly provided . . . , no deduction shall be 

allowed for personal, living, or family expenses.” 26 U.S.C. 

§ 262(a). Section 162 is an exception for certain trade or 

business expenses, providing that a taxpayer may deduct “all 

the ordinary and necessary expenses paid or incurred during the

taxable year in carrying on any trade or business, including . . . 

traveling expenses . . . while away from home in the pursuit of 

a trade or business.” Id. § 162(a)(2) (emphasis added). “[T]he 

taxpayer shall not be treated as being temporarily away from 

home during any period of employment if such period exceeds 
6 

1 year.” Id. § 162(a). To qualify for this deduction, a taxpayer 

must show that the expenses are (1) “ordinary and necessary,” 

(2) incurred while the taxpayer was “away from home,” and 

(3) incurred “in the pursuit of a trade or business.” Id.; see 

Comm’r v. Flowers, 326 U.S 465, 470 (1946). Even if 

appellants’ claimed expenses were necessary and their 

temporary employment would raise an inference that they were 

“away from home,” they fail to meet the third condition that 

their expenses were incurred “in the pursuit of a trade or 

business.” 

In Flowers, 326 U.S. at 472, the Supreme Court, 

construing a previous version of § 162(a)(2), concluded it was 

“unnecessary” to resolve whether the word “home” meant a 

taxpayer’s principal place of business or his place of residence, 

because even if the Tax Court’s interpretation of the word 

“home” as the taxpayer’s principal place of business was 

implicit in its decision and even if that interpretation was 

wrong, its judgment had to be sustained “if it properly 

concluded that the necessary relationship between the 

expenditures and the [employer’s] business was lacking. 

Failure to satisfy any one of the three conditions destroys the

traveling expense deduction.” Id. The Court explained: 

Travel expenses in pursuit of business within the 

meaning of [now § 162(a)(2)] could arise only when 

the [employer’s] business forced the taxpayer to travel 

and to live temporarily at some place other than [his 

usual residence], thereby advancing the interests of 

the [employer]. Business trips are to be identified in 

relation to business demands and the traveler’s 

business headquarters. The exigencies of business 

rather than the personal conveniences and necessities 

of the traveler must be the motivating factors. 
7 

Id. at 474. 

Since Flowers, the IRS, several courts of appeals, and the 

Tax Court have interpreted “home” as a taxpayer’s principal 

place of business, see, e.g., Andrews v. Comm’r, 931 F.2d 132, 

136-37 (1st Cir. 1991), whereas others have held that “home” 

means a taxpayer’s usual residence. For instance, in 

Rosenspan v. United States, 438 F.2d 905, 911-12 (2d Cir. 

1971), the Second Circuit concluded that “[w]hen Congress 

uses such a non-technical word in a tax statute, presumably it 

wants administrators and courts to read it in the way that 

ordinary people would understand.” In its view, interpreting 

“home” in light of the business exigencies condition is 

“unnecessary for the protection of the revenue that [the 

Commissioner] seeks.” Id. at 911. That is, proper application 

of the business exigencies condition as articulated in Flowers 

would eliminate any risk of taxpayers deducting travel 

expenses incurred for personal reasons. See id. 

Similarly, even if “home” generally means a taxpayer’s 

principal place of business, see Tax Ct. Op. 16, and even if 

temporary employment raises an inference that the taxpayer is 

“away from home,” this does not eliminate the third statutory 

condition. Courts have held that when a taxpayer “expects to 

be employed in a location for only a short or temporary period 

of time,” the “reasonable inference is that he is temporarily 

making these travels because of a business necessity,” 

Frederick v. United States, 603 F.2d 1292, 1294-95 (8th Cir. 

1979), and “it would be unreasonable to expect the taxpayer to 

move his home,” Rosenspan, 438 F.2d at 912. Both Frederick

and Rosenspan involved taxpayers whose business or trade 

required them to travel for temporary posts of employment in 

other cities and who were not expected to move their homes for 

these temporary posts. In Peurifoy v. Commissioner, 358 U.S. 

59, 60 (1958), the Supreme Court noted that the Tax Court had 
8 

treated temporary (as distinct from indefinite or indeterminate) 

employment as an “exception” to the “general rule” under the 

travel expense deduction. To that extent, had there been the 

necessary employment connection, it would be reasonable to 

infer appellants were “away from home” because they worked 

in the United States temporarily. See generally Putnam v. 

United States, 32 F.3d 911, 917 (5th Cir. 1994). That 

inference, however, does not eliminate the third statutory 

condition that the claimed expenses must be incurred “in the 

pursuit of a trade or business.” 26 U.S.C. § 162(a)(2). 

Appellants contend courts need not inquire into why a 

temporarily employed taxpayer incurs travel expenses, but they 

cite no authority for that proposition. Nothing in the IRS 

materials on which they rely supports their view. Revenue 

Ruling 93-86, 1993-40 I.R.B. 4, which they consider to support 

the view that the Summer Work Travel Program is temporary 

employment so their travel expenses are fully deductible, is 

inapposite; the taxpayers addressed there were regularly 

employed in one city before accepting a work assignment in 

another city. Further, the Commissioner notes that “a written 

determination” such as the private letter ruling appellants cite 

“may not be used or cited as precedent.” Appellee’s Br. 35 n.7

(quoting 26 U.S.C. § 6110(k)(3)). Appellants also rely on an 

IRS publication stating that a “nonresident alien [scholarship]

student or grantee may deduct away-from-home expenses 

(meals, lodging, and transportation) . . . if he or she expects to 

be away from his or her tax home for 1 year or less.” Internal

Revenue Service, Publication 515, Withholding of Tax on 

Nonresident Aliens and Foreign Entities, at 22 (2012). That 

publication neither cites § 162(a)(2) nor states that, for 

temporary employment, expenses need not be incurred as a 

result of business exigencies. Agency guidance could not, in 

any event, contradict the plain terms of the third condition of
9 

the statute. Cf. Air Line Pilots Ass’n, Int’l v. Chao, 889 F.3d 

785, 792 (D.C. Cir. 2018). 

The Supreme Court in Flowers interpreted the phrase “in 

the pursuit of a trade or business” to require “a direct 

connection between the expenditure and the carrying on of the 

trade or business of the taxpayer or of his employer.” 326 U.S. 

at 470. Consequently, “[t]ravel expenses in pursuit of business 

within the meaning of” 26 U.S.C. § 162(a)(2) “could arise only 

when the [employer’s] business forced the taxpayer to travel 

and to live temporarily at some place other than” the taxpayer’s 

home. Id. at 474. Appellants, who bear the burden to show the 

deduction applies, point to nothing that would suggest 

Congress intended to dispense with business exigencies as a 

condition for application of the deduction in their 

circumstances. Such legislative history as exists indicates that 

Congress was concerned primarily with “persons traveling on 

business,” i.e., “commercial travelers of the country, and 

especially those who are traveling on a commission basis.” 61 

Cong. Rec. 5201 (1921) (statement of Rep. Hawley). 

Appellants were not employed in their home countries when 

they traveled to the United States for temporary employment 

and did not return to existing jobs when they returned home. 

Although the Supreme Court in Peurifoy did not disturb the 

Tax Court’s application of “an exception” where the taxpayers 

were construction workers away on “temporary employment,” 

its holding was limited to whether the “Court of Appeals has 

made a fair assessment of the record” on the factual question 

of whether the taxpayers’ employment was temporary. 358 

U.S. at 60-61. Relying on the extra-textual doctrine of 

temporary employment to excuse failure to satisfy the business 

exigencies condition would allow an exception to swallow the 

rule and ignore that deductions are to be “strictly construed,”

INDOPCO, 503 U.S. at 84. 
10 

In urging that “the ‘temporary’ work exception . . . was 

intended to override the business exigencies test,” Appellants’

Br. 30, appellants maintain that the Tax Court erred in viewing

Hantzis v. Commissioner, 638 F.2d 248, 255 (1st Cir. 1981), to 

“represent[] a fair statement of the law,” Tax Ct. Op. 25. They 

suggest the First Circuit “appears to have confused the 

temporary work exception with the well-established ‘itinerant’ 

rule” and therefore “reasoned that ‘only a taxpayer who lives 

in one place, works in another, and has business ties to both is 

in the ambiguous situation that the temporary employment 

doctrine is designed to resolve.’” Appellants’ Br. 29 (quoting

Hantzis, 638 F.2d at 255). This contention does not advance 

appellants’ cause. Under Flowers, the third condition is met 

only when the employer’s “business forced the taxpayer to 

travel and to live temporarily at some place other than” the 

taxpayer’s home. Flowers, 326 U.S. at 474. Expenses incurred 

“solely as the result of the taxpayer’s desire to maintain a 

home” in one place while working in another are “irrelevant to 

the maintenance and prosecution” of the employer’s business. 

Id. at 473. Applying Flowers, this court upheld the Tax Court’s 

denial of a deduction because the taxpayer “neither maintained 

a place of abode in Atlanta, nor brought his family to 

Washington, in order to do the work which he was employed 

to do.” York v. Comm’r, 160 F.2d 385, 386 (D.C. Cir. 1947). 

Therefore, even if appellants were “away from home,” any 

expenses must satisfy the business exigencies condition. 

Appellants fail that prong. 

 

Appellants Liljeberg, Zolotareva, and Conway worked in 

the United States during the summer of 2012 at Noah’s Ark, 

Roche Harbor Resort, and Gosman’s Dock Restaurant, 

respectively. These employers did not require employees to 

move to the United States temporarily; rather, appellants chose

to come to the United States to participate in the Summer Work 

Travel Program. Their travel expenses flowed from that choice 
11 

rather than the needs of their temporary employers. To the 

extent obtaining a “J visa” required appellants to have no 

intention of abandoning a residence in their home countries, 8 

U.S.C. § 1101(a)(15)(J), appellants would equate maintaining 

an abode for immigration purposes and maintaining a home for 

business purposes, but the Tax Court has rejected that 

equivalence. See Tax Ct. Op. 27 (citing Pappas v. Comm’r, 34 

T.C.M. (CCH) 1397, 1398 (1975)). Shifting the focus from the 

demands of the taxpayer’s employer to the requirements of 

immigration law would expand the travel expenses deduction 

in defiance of Flowers and the narrow scope accorded to 

deductions. 

Finally, appellants’ reliance on United States v. LeBlanc, 

278 F.2d 571, 577 (5th Cir. 1960), is misplaced. There, state 

law required a Louisiana judge to maintain a home in 

Napoleonville, his usual residence, and to perform certain 

judicial duties in New Orleans. Id. at 574-75. Appellants 

maintain that they are like Justice LeBlanc because they, too, 

were legally “required to maintain home abodes in their home 

countries to be able to work in [the] jobs they did in the U.S.

during 2012.” Appellants’ Br. 35. But the state law 

requirement of multiple homes in LeBlanc was relevant only 

because the judge’s employer was the state of Louisiana. 278 

F.2d at 576. The judge’s travel and living expenses resulted 

from the demands of his employer rather than “the personal 

conveniences and necessities of the traveler.” Flowers, 326 

U.S. at 474. Appellants’ employers were not the source of the 

travel and living expenses. Rather, appellants incurred those 

expenses because they voluntarily chose to participate in the 

Summer Work Travel Program. Allowing foreign students 

who travel to the United States on a “J visa” for temporary 

employment to deduct their travel expenses when students who 

are U.S. citizens traveling within the United States to seek 

temporary employment cannot, see Weiberg v. Comm’r, 639 
12 

F.2d 434, 437 (8th Cir. 1981), would be a peculiar and 

irrational result. 

Accordingly, because appellants did not incur the travel 

and living expenses at issue “in the pursuit of a trade or 

business,” they may not deduct those expenses under 26 U.S.C. 

§ 162(a)(2), and we affirm the judgment of the Tax Court.