T.C. Memo. 2003-3

UNITED STATES TAX COURT

RICHARD M. BROCKMAN, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 3591-02. Filed January 7, 2003.

Richard M. Brockman, pro se.

Jeremy L. McPherson, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

GERBER, Judge: Respondent determined a $3,248 deficiency in

petitioner’s 1998 income tax. The issues remaining for our

consideration are: (1) Whether petitioner’s place of employment

was temporary so as to entitle him to deduct travel expenses; and

(2) if petitioner’s employment location was temporary, whether he

adequately substantiated his travel expenses. 
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1 The parties’ stipulation of facts is incorporated by this

reference.

FINDINGS OF FACT1

Petitioner resided in California at the time his petition

was filed. He timely filed his 1998 Federal income tax return,

Form 1040, U.S. Individual Income Tax Return, on which he

reported wage income of $54,640. During 1998, petitioner was

employed as an automobile salesman. From February 26 through the

middle of June 1998, petitioner worked at Concord Honda in

Concord, California (Concord). From the middle of June 1998

through October 12, 1998, petitioner worked at Honda of

Serramonte in Colma, California (Colma). Petitioner’s residence

at all pertinent times during 1998 was in Pleasant Hill,

California. 

Petitioner had difficulty working with the general manager

at Concord, and he approached the personnel manager with his

problem. The personnel manager advised petitioner that the

Concord general manager would soon be leaving the Concord

location. The personnel manager offered to transfer petitioner

to the Colma dealership until the troublesome general manager

left Concord. The Concord dealership was only a few miles from

petitioner’s Pleasant Hill residence, whereas the Colma

dealership is approximately 64 miles from petitioner’s residence. 

Petitioner made 97 round trips to the Colma location. 
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Approximately 4 months after petitioner agreed to transfer

to the Colma location, the Concord general manager left. 

Petitioner then sought to return to Concord, and he was not

permitted to do so. After petitioner was transferred to Colma,

he incurred medical bills which he submitted for reimbursement. 

His claim was denied because the Concord personnel manager had

stopped petitioner’s health benefits after he transferred to the

Colma location. Petitioner pressed the matter with the personnel

manager, and he recouped his medical expenditures. After the

incident involving the medical expenses, petitioner was not

permitted to return to the Concord location, and he stopped

working for the automobile dealership. 

Petitioner did not itemize his personal deductions and

instead claimed a standard deduction on his 1998 return. On

petitioner’s Schedule C, Itemized Deductions, he claimed an

$11,522 loss, which comprised the following expense items:

Expense Items Amount

Car and truck $7,552

Depreciation and sec. 179 1,805

Legal and professional 209

Meals and entertainment: 

 $1,269 less 50 percent ($635) 634

Utilities 944

Other expenses:

ISP fees 319

Office supplies 59

Total expenses 11,522
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Petitioner did not report any income on his 1998 Schedule C.

Petitioner indicated on his Schedule C that his principal

business or profession was “Online publishing”. 

Petitioner calculated the $7,552 in car expenses by

multiplying the 21,545 claimed business miles by $0.325 per mile

(equals $7,002), to which he added an amount for parking and

tolls.

Respondent determined that petitioner failed to report $75

of nonemployee compensation income but now agrees that petitioner

properly included said amount as part of his reported wages of

$54,640. 

OPINION

Generally, taxpayers are not allowed to deduct the daily

cost of commuting to and from work, as such expense is considered

to be personal and nondeductible. Commissioner v. Flowers, 326

U.S. 465, 473-474 (1946); sec. 1.162-2(e), Income Tax Regs. One

exception from that general rule involves situations where the

transportation is to and from a temporary work location. See,

Rev. Rul. 90-23, 1990-1 C.B. 28, as amplified and clarified by

Rev. Rul. 94-47, 1994-2 C.B. 18, as modified by Rev. Rul. 99-7,

1999-1 C.B. 361.

Under the above-cited revenue rulings, taxpayers are

permitted deductions for daily transportation expenses incurred

in going between a taxpayer’s residence and a temporary work
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location outside the metropolitan area where the taxpayer

normally lives and works. Petitioner lived in Pleasant Hill,

California, and until a change in his work location, worked in

nearby Concord, California. His new work location in Colma,

California, was outside of the metropolitan area of his residence

and his Concord work location. Respondent contends that

petitioner has not shown that his position at Colma was

temporary. Respondent alternatively contends, that if

petitioner’s position is found to be temporary, that petitioner

has not sufficiently substantiated his mileage.

Petitioner’s transfer to the Colma location was temporary in

nature. Petitioner was unable to work with the general manager

at his Concord work location. The companywide personnel manager

advised petitioner that the Concord general manager would be

leaving soon and that petitioner could temporarily work at the

Colma dealership until the general manager left. The Colma

location presented a substantial daily commute for petitioner. 

It was expected that petitioner would work at the Colma location

for a few months and then return to Concord. Petitioner worked

at the Colma location for 4 months until the Concord general

manager left the Concord location. Petitioner was not allowed to

return to the Concord location and terminated his employment.

Petitioner’s situation is similar to those described in

Mazzotta v. Commissioner, T.C. Memo. 1971-227. In that case a
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school teacher was having difficulty negotiating an acceptable

employment contract, and he found a 1-year position in another

State. The taxpayer in Mazzotta was found to be temporarily

employed away from his home district until the difficulty was

resolved. See also Massey v. Commissioner, T.C. Memo. 1984-210;

Taylor v. Commissioner, T.C. Memo. 1980-376; Rolbin v.

Commissioner, T.C. Memo. 1970-186. We, accordingly, hold that

petitioner’s position at Colma was temporary. See Rev. Rul. 99-

7, 1999-1 C.B. 361.

Next, we must consider whether petitioner adequately

substantiated his claimed travel expenses from the Concord area

to the Colma location during the 4-month period. Petitioner

prepared a calendar on which he identified each of his work days

during the 4-month period that he commuted between Concord and

Colma. The situation is quite rudimentary, in that petitioner

generally worked 6 days per week. Based on his records, we find

that petitioner traveled to the Colma location 97 times. At 128

miles per round trip, petitioner’s total mileage attributable to

travel to his temporary position was 12,416. Applying the

established $0.325 per mile rate, petitioner’s deduction

attributable to his temporary position would be $4,035.20. We

find petitioner’s records sufficient to establish his entitlement

to a $4,035.20 deduction. We note, however, that the $4,035.20 
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2 We leave the question of whether petitioner would benefit

by claiming this itemized deduction as opposed to a standard

deduction to the parties’ computation under Rule 155.

would be an itemized deduction and is less than the $6,250

standard deduction claimed on petitioner’s 1998 return.2 

Finally, although petitioner, in connection with an alleged

online publishing activity, claimed additional mileage and other

expenses on his 1998 Schedule C, he did not substantiate any of

those amounts or show that he was in a trade or business other

than his employment as a car salesman. Accordingly, we hold that

petitioner is not entitled to any of the remaining travel or

other items claimed on his 1998 Schedule C.

To reflect the foregoing,

Decision will be entered

under Rule 155.