1 All section references are to the Internal Revenue Code

in effect for the year at issue. All Rule references are to the

Tax Court Rules of Practice and Procedure.

T.C. Memo. 1995-553

UNITED STATES TAX COURT

GARY M. AND TRUDY J. WEICHLEIN, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 26374-93. Filed November 21, 1995.

Murray H. Falk, for petitioners.

Linas N. Udrys, for respondent.

MEMORANDUM OPINION

NAMEROFF, Special Trial Judge: This case was heard pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1 Respondent determined a deficiency in petitioners' 1990

Federal income tax in the amount of $6,753, plus an accuracyrelated penalty under section 6662(a) in the amount of $1,351.
- 2 -

 

2 Even if we did not treat respondent's failure to brief

this issue as a concession, we would find for petitioners on this

issue based upon their reliance on a competent, experienced

return preparer in claiming these deductions.

The issue for decision is whether petitioners are entitled

to deduct "away from home" expenses. Respondent failed to

address the accuracy-related penalty issue in her brief or reply

brief, and we conclude that respondent has conceded that issue. 

See Rule 151(e)(5); Money v. Commissioner, 89 T.C. 46, 48

(1987).2 

This case was submitted fully stipulated, and the stipulated

facts are so found. The stipulation of facts and attached

exhibits are incorporated herein by this reference. Petitioners

resided in Catheys Valley, California, at the time the petition

was filed. Hereinafter, all references to petitioner are to

petitioner Trudy J. Weichlein.

Petitioner was born in Santa Barbara, California, and

graduated from high school in Saugus, California, in 1969. 

Petitioner married George M. Weichlein (Mr. Weichlein) in 1967,

and they have one daughter born in 1971. In 1978, petitioner

moved with her husband and daughter from Boron, California, to

Catheys Valley, California. Boron is located in southern

California near Edwards Air Force base and within 50-60 miles of

Victorville, California. Catheys Valley is located "just north"

of the geographic center of California, due east of San Jose. 
- 3 -

 

3 The record does not reflect petitioner's training or

employment history between 1969 and 1978.

The record is silent as to the reason for the move to Catheys

Valley. 

Petitioner and her family have resided in Catheys Valley

since 1978. Petitioner and her husband own real property, are

registered to vote, and have registered their vehicles in Catheys

Valley since 1978. Petitioner has maintained a checking account

within 10 miles of Catheys Valley since 1978. Petitioner's

daughter attended public schools located in Catheys Valley from

1978 through 1986 and continues to reside with petitioner in

Catheys Valley. Since retirement in 1986, Mr. Weichlein has

resided in the family residence in Catheys Valley. 

Petitioner was occupied full time as a homemaker from the

time she moved to Catheys Valley in 1978 until September 1979, at

which time she accepted employment as a dispatcher3 for Desert

Construction Co. (Desert) at a road construction site (at which

her husband was also employed) north of Bishop, California

(approximately 115 miles from Catheys Valley). She commuted

daily (with her husband) between their residence in Catheys

Valley and that location (approximately 1-1/2 to 2 hours each

way) for more than 1 month during which they worked 8-hour days. 

Petitioner was also employed as a dispatcher by Desert at a

road construction site in Trona, California (approximately 265
- 4 -

miles from Catheys Valley), from November of 1979 until February

of 1980 and at a road construction site at Ocitillo, California

(near the Mexican border and approximately 515 miles from Catheys

Valley), from April through October of 1980. She was unemployed

from February to April 1980, during which time she resided at her

residence in Catheys Valley.

The following table illustrates petitioner's employment

history for the years 1979 through 1990. The parties have

stipulated that petitioner expected each of these jobs,

generally, to last only for a short period of time and that for

each job, she remained overnight near the job site during the

work week because of its distance from Catheys Valley, and

returned to her residence in Catheys Valley on most weekends.
- 5 -

 Approximate

Employer Position Start date End date Duration

Location Distance1

Desert Dispatcher Sept. 1979 Oct. 1979 2 months

Bishop, Cal. 115 

Desert Dispatcher Nov. 1979 Feb. 1980 4 months

Trona, Cal. 265 

Desert Dispatcher Apr. 1980 Oct. 1980 7 months

Octillo, Cal. 515 

Desert Hot plant operator Nov. 1980 Dec. 1980 2 months

Barstow, Cal. 325 

2 Hot plant operator Apr. 1981 Nov. 1981 8 months Baker,

Cal. 385 

2 Hot plant operator Apr. 1982 May 1982 2 months Baker,

Cal. 385 

2 Hot plant operator May 1982 June 1982 2 months Fort

Irwin, Cal. 335 

2 Hot plant operator June 1982 Dec. 1982 6 months

Riverside, Cal. 300 

2 Hot plant operator Mar. 1983 May 1983 3 months

Inyokern, Cal. 245 

2 Hot plant operator July 1983 Aug. 1983 2 months

California City, Cal. 225 

2 Hot plant operator Oct. 1983 Dec. 1983 3 months

Inyokern, Cal. 245 

2 Hot plant foreman Apr. 1984 Aug. 1984 5 months

Victorville, Cal. 330 

2 Hot plant foreman Sept. 1984 Nov. 1984 3 months

Inyokern, Cal. 245 

2 Hot plant foreman Apr. 1985 Nov. 1985 8 months

Dunmovin, Cal. 175 

2 Hot plant foreman Apr. 1986 April 1986 1 month

Inyokern, Cal. 245 

2 Hot plant foreman May 15, 1986 May 26, 1986 2 weeks Independence,

Cal. 155 

2 Hot plant foreman May 26, 1986 June 20, 1986 4 weeks

Victorville, Cal. 330 

2 Hot plant foreman June 23, 1986 July 5, 1986 3 weeks

Inyokern, Cal. 245 

2 Hot plant foreman July 6, 1986 July 12, 1986 1 week

Victorville, Cal. 330 

2 Crane oiler Nov. 1986 Nov. 1986 1 month

San Francisco, Cal. 150 

2 Crane oiler Dec. 1986 Mar. 1987 4 months

Sacramento, Cal. 130 

2 Pile dynamics engineer Dec. 1986 Mar. 1987 4 months

Stockton, Cal. 85 

2 Hot plant foreman Apr 1987 May 1987 2 months

Victorville, Cal. 330

2 Hot plant foreman May 1987 Sept. 1987 4 months

Needles, Cal. 390

2 Hot plant foreman Oct. 1987 Nov. 1987 2 months

Inyokern, Cal. 245

2 Hot plant foreman Jan. 3, 1988 Feb. 19, 1988 7 weeks

Victorville, Cal. 330

2 Hot plant foreman Feb. 25, 1988 June 17, 1988 4 months

Needles, Cal. 390

2 Hot plant foreman July 12, 1988 Aug. 20, 1988 6 weeks

Laughlin, Nev. 450

2 Hot plant oiler Aug. 22, 1988 Oct. 13, 1988 7 weeks

Bakersfield, Cal. 145

2 Hot plant oiler Oct. 31, 1988 Dec. 8, 1988 6 weeks

Coalvale, Nev. 200

Fontana Equipment oiler Dec. 9, 1988 May 1989 6 months

Lucerne Valley, Cal. 245

Fontana Hot plant foreman June 1989 Nov. 1989 6 months

Victorville, Cal. 330

Fontana Hot plant operator Jan. 1990 June 3, 1990 5 months Anaheim,

Cal.3 400

Fontana Hot plant operator June 4, 1990 Dec. 21, 1990 7 months Victorville,

Cal. 330

1 This column represents the number of miles from the construction site to

Catheys Valley. We could not 

locate Coalvale, Nev., but there is a Coaldale, Nev., approximately 77 miles north

and west of Bishop. We were 

also unable to locate Ft. Irwin. Except for Bishop, San Francisco, Sacramento,

Stockton, and probably 

Coaldale, Independence, and Inyokern, all of the locations are either generally in

the Victorville/Barstow 

vicinity or further from Catheys Valley than Catheys Valley is from Victorville.

2 The stipulation of facts does not identify petitioner's employer

for these periods of employment.

3 Anaheim is 73 miles from Victorville.
- 6 - 6

 

4 A hot plant is a transportable apparatus containing

four components (feeder, weigh belt, driver drum, and silo) and a

control room. The hot plant produces hot asphalt from dried and

graded crushed rock and heated graded oil or sand for road

paving. The hot plant is normally located near the pit producing

the rock. The asphalt is transported by truck from the hot plant

to the portion of the road upon which it is laid. Hot plant

operations are seasonal in the high areas of California, Nevada,

and Arizona, because the outside temperature must be 60 degrees

Fahrenheit and rising to lay asphalt on public roads. The hot

plant operator controls the delivery of materials to the plant,

the processing of materials in the plant, the mixture of the

asphalt, the delivery of the asphalt to trucks at the plant, and

the dispatch of trucks to the job (in the absence of a

dispatcher), and performs and supervises the repair and

maintenance of the plant.

 When petitioner was employed as a hot plant operator4 in

November and December 1980 in Barstow, California, she became a

member of the International Union of Operating Engineers, Local 12

(Local 12). Local 12 has jurisdiction over all of California south

of Bakersfield, Nevada, and over part of Arizona. The hiring of hot

plant operators is done entirely through union halls. During

periods of unemployment, petitioner registered for work with Local

12 and occasionally with Local 3, which has jurisdiction over

California north of Bakersfield and over Oregon and Washington. The

nearest union hall to petitioner is located in Atwater, California,

approximately 36 miles from Catheys Valley.

 As a hot plant operator and foreman, petitioner is required

to use, and therefore owns, various tools including wrenches,

hammers, prying bars, voltage meters, tool chests, and incidental

tools. Petitioner takes these tools with her to each job location
- 7 - 7

and stores them at her residence in Catheys Valley when she is not

employed elsewhere.

 When petitioner was employed by Fontana Paving Co. (Fontana)

in Lucerne Valley from December 8, 1988, through May 1989, she

brought her recreational vehicle to Lucerne Valley and resided in it

during her period of employment there, except for those weekends she

returned to Catheys Valley. During her employment in Lucerne

Valley, petitioner learned to fly an airplane and obtained a private

pilot's license.

 When petitioner was hired in June 1989 by Fontana to work in

Victorville, her employment was expected to last for 2 months while

David Cooley was running the hot plant in Lucerne Valley. Because

additional work at the Lucerne Valley plant required Mr. Cooley's

presence, petitioner remained at Victorville until November 1989. 

While petitioner was employed in Victorville, she rented living

accommodations from Alison Criffield and stored her recreational

vehicle on Ms. Criffield's property. Petitioner stayed in

Victorville during the week because of its distance from Catheys

Valley and returned to Catheys Valley during most weekends. When

Mr. Cooley returned to the Victorville plant in November 1989,

petitioner returned to her residence in Catheys Valley, with no

expectation of being rehired to work at or near Victorville in the

foreseeable future. Petitioner put her name in at the hiring halls.
- 8 - 8

 

5 Vernon and Fontana were, at that time, both owned by

Boral Resources. Petitioner was hired through the union hall by

Fontana, which rented her services to Vernon. Payments for

petitioner's services were made to Fontana on purchase orders

from Vernon to avoid the necessity of further union hall

involvement.

 

6 Petitioner could stay with Ms. Criffield for $60 per

week as opposed to $40 per night in Anaheim.

 In January 1990, petitioner was rehired by Fontana through

Local 12. She was instructed to report to Vernon Paving Co.

(Vernon)5 at its hot plant in Anaheim, California. Petitioner was

informed that she would run the Anaheim hot plant for 2 weeks,

within which time Vernon expected to have another operator to

replace the operator who had quit without notice. She was told that

she would then go to Fontana's Victorville hot plant to replace Mr.

Cooley, who was absent for a short period of time. Understanding

that her employment in Anaheim would last 2 weeks, petitioner drove

to Victorville on January 1, 1990, and made arrangements to stay

with Ms. Criffield in Victorville.6 Petitioner resided with Ms.

Criffield until February 27, 1990, except for those occasions when

she stayed overnight in Anaheim or in Catheys Valley.

 On January 3, 1990, Walter Bludder, supervisor of the Vernon

hot plants located in Anaheim, Irvine, and Irwindale, instructed

petitioner to train Steve Guerrero to operate the Anaheim plant. 

Although the training was expected to last 2 weeks, the training did

not go well and extended into February. On February 12, 1990,

petitioner was informed by Jim Collie, supervisor of the Victorville
- 9 - 9

plant, that he was bringing her to Victorville even though Mr.

Guerrero had not developed the skills necessary to operate the

Anaheim plant. On February 18, 1990, Mr. Collie told petitioner to

return to the Anaheim plant.

 On April 9, 1990, petitioner was informed that she was to

train a new person, Norman Bateman, to run the Anaheim plant. On

April 23, 1990, petitioner was informed that she would run the

Victorville plant beginning on June 4, 1990, for a short period of

time because Mr. Cooley was leaving that same day to run the Lucerne

Valley plant. On June 1, 1990, petitioner was told to report to the

Victorville plant on June 4, 1990.

 On or about February 27, 1990, petitioner brought her

recreational vehicle to the Adelanto RV park near Victorville and

resided in it until December 21, 1990, except for those occasions

when she stayed overnight in Anaheim hotels or her residence in

Catheys Valley. From January 2, 1990, through June 1, 1990,

petitioner drove, almost daily, between Victorville and Anaheim. In

addition, petitioner was frequently sent to hot plants located in

Upland, Irwindale, and Irvine to conduct in-house training of hot

plant operators and to conduct quality tests either en route between

Anaheim and Victorville or from Anaheim during this period. 

Petitioner either drove her automobile or flew her airplane, which

she purchased on or about May 1990, between Victorville and Catheys

Valley on most weekends.
- 10 - 10

 

7 The parties stipulated that $136 for work boots, $243

for work tools, and $974 for union dues are allowable as

deductions under sec. 162(a), subject to the sec. 67(a) 2-percent

limitation. This will be reflected in the Rule 155 computation.

 From June 4 to December 21, 1990, petitioner was employed as

hot plant operator in Victorville. At the time she entered that

employment, it was expected to last a short period of time. While

she was employed in Victorville, petitioner remained there during

the week because of its distance from Catheys Valley and returned to

Catheys Valley on most weekends.

 During 1990, petitioner was the primary provider for her

family. Petitioner and Mr. Weichlein continued to incur and pay

mortgage payments, real estate taxes, utility costs, and all other

expenses of owning and maintaining their residence in Catheys

Valley.

 On the Schedule A attached to petitioners' Form 1040 for

taxable year 1990, petitioners claimed unreimbursed employee

expenses in the amount of $24,117.7 A portion of this amount

represents travel, meals, and lodging expenses incurred by

petitioner in connection with her employment. Specifically,

petitioner claimed rent in the amount of $3,143; meals in the amount
- 11 - 11

 

8 This amount represents 262 days at $26 per day, less 20

percent as required by sec. 274(n).

 

9 This amount represents 29,648 miles at 26 cents per

mile.

 

10 This amount represents $1,215 for fuel, $1,929 for

insurance, $1,726 for interest, $625 for tie-down fees, $1,366

for other expenses, less $442 for personal use, and $3,796 for

depreciation, less $209 for depreciation attributable to personal

use.

of $5,450;8 mileage in the amount of $7,708;9 and airplane expenses

in the amount of $10,006.10 

Respondent disallowed the expenses claimed by petitioner for meals,

lodging, and travel. Respondent contends that during taxable year

1990, petitioner's "tax home" was in Victorville, California. Thus,

respondent argues that petitioner was not "away from home" and the

expenses are not deductible. Respondent concedes on brief, however,

that petitioner, when working in Anaheim, was temporarily away from

her "tax home" in Victorville, and therefore is entitled to

deductions for appropriate travel expenditures, if any, in

connection therewith. Alternatively, respondent contends that if

petitioner's employment in Victorville is considered "temporary",

the expenditures incurred for weekend commutes to Catheys Valley

lack a business purpose and are not deductible.

 Petitioner contends that the travel expenditures were

incurred while she was "away from home" and that her "tax home" was

in Catheys Valley. In addition, petitioner contends that

respondent's alternative issue was not raised in the notice of
- 12 - 12

deficiency or the pleadings and should not be considered by the

Court. However, if the alternative issue is considered, petitioner

argues that respondent bears the burden of proof on this "new issue"

and has failed to carry that burden. 

 We begin by noting that determinations by the Commissioner

are presumed correct, and the taxpayer has the burden of proof to

overcome that presumption. Rule 142(a). The fact that the case is

fully stipulated does not change the burden of proof. Borchers v.

Commissioner, 95 T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir.

1991). 

 Section 162(a)(2) allows taxpayers to deduct "the ordinary

and necessary expenses paid or incurred during the taxable year in

carrying on any trade or business, including * * * traveling

expenses (including amounts expended for meals and lodging * * *)

while away from home in the pursuit of a trade or business". The

Supreme Court has established a three-prong test for allowing

deductions under section 162(a)(2). The expense must be (1)

reasonable and necessary, (2) incurred while away from home, and (3)

incurred in the pursuit of a trade or business. Commissioner v.

Flowers, 326 U.S. 465, 470 (1946). 

 As a general rule, if a taxpayer is employed permanently or

for an indefinite time away from his usual abode, "home" for the

purposes of section 162(a)(2) means the vicinity of the taxpayer's

principal place of employment and not where his or her personal
- 13 - 13

 

11 The purpose of this rule is clear. It is not

reasonable to expect people to move to another location for a

(continued...)

residence is located. Coombs v. Commissioner, 608 F.2d 1269, 1275

(9th Cir. 1979), affg. in part and revg. in part 67 T.C. 426 (1976);

Mitchell v. Commissioner, 74 T.C. 578, 581 (1980). However, under

the exception to this rule, a taxpayer's personal residence may be

the "tax home" if the principal place of business is "temporary",

rather than "indefinite". Peurifoy v. Commissioner, 358 U.S. 59, 60

(1958). The reason for not shifting the taxpayer's "tax home" to

the temporary place of employment is "to mitigate the burden of the

taxpayer who, because of the exigencies of his trade or business,

must maintain two places of abode". Kroll v. Commissioner, 49 T.C.

557, 562 (1968).

 A place of business is a "temporary" place of business if

the employment is such that "termination within a short period could

be foreseen". Albert v. Commissioner, 13 T.C. 129, 131 (1949). 

Conversely, employment is "indefinite", "substantial", or

"indeterminate" if "its termination cannot be foreseen within a

fixed or reasonably short period of time." Stricker v.

Commissioner, 54 T.C. 355, 361 (1970), affd. 438 F.2d 1216 (6th Cir.

1971). If employment which is "temporary" at its inception becomes

"substantial", "indefinite", or "indeterminate" in duration, the

situs of the "tax home" is the location of the taxpayer's

employment.11 Kroll v. Commissioner, supra. Employment may change
- 14 - 14

 

11(...continued)

temporary job. Kasun v. United States, 671 F.2d 1059, 1061 (7th

Cir. 1982). The exigencies of temporary employment may require

the taxpayer to incur more substantial costs than might be

incurred in employment of indefinite duration. Rosenspan v.

United States, 438 F.2d 905, 912 (2d Cir. 1971). A deduction for

these expenses eases the burden on taxpayers who must bear the

expenses of living on the road while maintaining a personal

residence. Id. at 912; Bochner v. Commissioner, 67 T.C. 824, 828

(1977).

from temporary to indefinite due to changed circumstances, or simply

the passage of time. Norwood v. Commissioner, 66 T.C. 467, 470

(1976). Whether employment is temporary or indefinite is a question

of fact. Peurifoy v. Commissioner, supra at 60-61. "No single

element is determinative of the ultimate factual issue of

temporariness". Norwood v. Commissioner, supra at 470.

 The Court of Appeals for the Ninth Circuit, to which this

case is appealable, has construed the "temporary versus indefinite"

distinction as follows:

 An employee might be said to change his tax home if 

 there is a reasonable probability known to him that he may

be employed for a long period of time at his new station. 

What constitutes "a long period of time" varies with

circumstances surrounding each case. If such be the

case, it is reasonable to expect him to move his

permanent abode to his new station, and thus avoid the

double burden that the Congress intended to mitigate. * *

* [Harvey v. Commissioner, 283 F.2d 491, 495 (9th Cir.

1960), revg. 32 T.C. 1368 (1959).] 

 We conclude herein that petitioner has failed to establish

that she was away from home while living in Victorville during 1990.

 This record is devoid of evidence to establish that petitioner

had a business connection with Catheys Valley. Initially,
- 15 - 15

petitioner and her husband resided in the Victorville area at Boron. 

They moved to Catheys Valley, but there is no evidence of any

business purpose for such move, and we may therefore assume that the

purpose for the move was personal. Nevertheless, with few

exceptions, petitioner continued to accept employment in the

southern California area, with most jobs being near Victorville or

further from Catheys Valley than from Victorville; e.g. Octillo,

California; Needles, California; Laughlin, Nevada.

 The parties stipulated that each job petitioner accepted was

for a short term and that petitioner had no anticipation of further

employment by Fontana. We recognize that road or other construction

or repair projects are commonly of limited duration. But if the

employer is successful and has many projects, highly regarded,

skilled employees will continue to be employed. It is in this

context that we understand the parties' stipulations as to

petitioner's expectation of future work, once a project was

completed. Fontana was in the road construction business and

petitioner was highly regarded by Fontana. The relationship between

them was a continuing one, subject only to the availability of

projects requiring her skills. Fontana's principal place of

business and most of its operations were in the southern California

area. Its headquarters were in Fontana, California, near San

Bernardino. 
- 16 - 16

 Petitioner's only employer from 1988 through all of 1990 was

Fontana or its sister corporation, Vernon. While petitioner did

work in Anaheim for a short period, she spent a majority of taxable

year 1990 in Victorville. We find that petitioner's principal place

of business in 1990 was Victorville, California. However, because

she lacked any business ties to Catheys Valley, she was not "away

from home" when she was living and working in the Victorville area. 

See Tucker v. Commissioner, 55 T.C. 783, 787 (1971).

 Petitioner maintains that her employment with Fontana in the

Victorville area was temporary because she intended to remain in the

area for a short period of time. In addition, petitioner contends

that she worked at a series of temporary jobs, always returned to

Catheys Valley whenever possible, and had maintained a residence in

Catheys Valley since 1978. However, because she has failed to show

that she had any business prospects or ties in Catheys Valley, her

work in Victorville did not take her "away from home" for purposes

of section 162(a)(2).

 Petitioner's ownership of a residence in Catheys Valley is not

enough to justify a decision in petitioner's favor. To do so would

place petitioner's home where her heart lies and render section

162(a)(2) a vehicle by which to deduct the full spectrum of one's

personal and living expenses. See Bochner v. Commissioner, 67 T.C.

824, 828-829 (1977). Petitioner's decision to retain her residence
- 17 - 17

 

12 While respondent has conceded that, if Victorville is

petitioner's tax home, her employment in the Anaheim area was

temporary, the record contains insufficient evidence to identify

any amount of travel expense actually incurred in connection with

such employment, other than petitioner's driving the 73-mile

round trip "almost daily" between Jan. 2 and June 1. 

Accordingly, we allow petitioner a mileage deduction based upon

146 miles for 5 days per week for 22 weeks. 

in Catheys Valley, while employed in the Victorville area, was a

personal decision. 

 Therefore, we conclude that petitioner is not entitled to

deduct expenses incurred while living and working in the Victorville

area, including expenses for travel back and forth to Catheys

Valley.12 Because we have concluded that petitioner was not "away

from home" during 1990, we need not address respondent's alternative

argument that expenses incurred by petitioner for travel between

Victorville and Catheys Valley were not reasonable. 

Decision will be entered

under Rule 155.