T.C. Summary Opinion 2001-75

UNITED STATES TAX COURT

CHRISTIAN R. CALIMER, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 8372-99S. Filed June 4, 2001.

Christian R. Calimer, pro se.

Nancy L. Spitz, for respondent.

CARLUZZO, Special Trial Judge: This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed. Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the years in issue. The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority. 
- 2 -

Respondent determined deficiencies of $4,580 and $5,259,

respectively, in petitioner’s 1995 and 1996 Federal income taxes, 

and an addition to tax of $100 under section 6651(a)(1) for 1996.

The issues for decision are: (1) Whether for each year in issue

petitioner is entitled to deductions for meals and lodging

expenses; and (2) whether for 1996 petitioner is liable for an

addition to tax under section 6651(a)(1).

Background

Some of the facts have been stipulated and are so found. 

At the time the petition was filed, petitioner resided in San

Diego, California.

Petitioner is a special agent for the Naval Criminal

Investigative Service (NCIS). According to recruiting materials

published by NCIS, 

During their careers, NCIS special agents can look

forward to a wide range of assignments, including some

overseas, in locations such as Great Britain, Italy,

and Japan. Tours of duty inside the continental United

States average from four to six years, depending upon

the needs of NCIS. Overseas tours vary from two to

three years generally, with opportunities to extend,

again depending on the needs of the service. Afloat

tours, and tours in a limited number of isolated

locations overseas, are generally limited to one year. 

With the exception of afloat and isolated tours,

special agents are accompanied by their families.

 

Petitioner’s career as an NCIS special agent fits the above

description. He was hired in 1982 with a post of duty in Pearl

Harbor, Hawaii. His first 1-year afloat tour aboard an aircraft

carrier began in 1984. He was assigned to the Philippines from
- 3 -

1985 until 1987 and then assigned to a 6-month afloat tour on

board an aircraft carrier. In 1988, he was assigned to Virginia

Beach, Virginia, where he purchased a home and remained until

1993. In April 1993, he was relocated to Guam, where he remained

throughout the years in issue. His initial assignment to Guam

was for 2 years, but it was extended for a year. In 1996, he was

transferred to San Diego, California, where he remained until his

transfer to Miami, Florida in 1999.

In connection with being relocated to Guam, petitioner was

authorized real estate relocation expenses by NCIS if he elected

to sell his house in Virginia Beach, which he did not do. As a

civilian Federal employee, he was not entitled to, and did not

receive, a living quarters allowance while in Guam. His rate of

pay, however, was increased by 25 percent because of a “nonforeign cost of living allowance/post differential”. 

Petitioner’s 1995 Federal income tax return was timely

filed; his 1996 Federal income tax return was due on April 15,

1997, and filed on December 10, 1997. The expenses that

petitioner incurred for meals and lodging while living in Guam

during the years in issue are deducted as unreimbursed employee

business expenses on his Federal income tax returns for those

years.
- 4 -

In the notice of deficiency, respondent disallowed the

deductions for meals and lodging expenses claimed for each year

in issue. According to the explanation in the notice,

petitioner’s “travel/living expenses while in Guam are not

deductible” because petitioner’s assignment to Guam was “for a

period of at least 24 months”. For 1996, respondent also imposed

a $100 addition to tax under section 6651(a) because petitioner’s

1996 return was filed more than 60 days late.

Discussion

I. Traveling Expense Deductions

Ordinarily, a taxpayer may not deduct personal expenses,

such as the costs of meals and lodging. See sec. 262. However,

traveling expenses, including meals and lodging, incurred by a

taxpayer during the taxable year while traveling away from home

in the pursuit of a trade or business are deductible. See sec.

162(a)(2). To qualify for deduction under section 162(a)(2), the

traveling expense must be: (1) Reasonable and necessary; (2)

incurred while the taxpayer was traveling “away from home”; and

(3) directly related to the conduct of the taxpayer’s trade or

business. Commissioner v. Flowers, 326 U.S. 465, 470 (1946). 

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

tax home. See Mitchell v. Commissioner, 74 T.C. 578, 581 (1980);

Foote v. Commissioner, 67 T.C. 1, 4 (1976); Kroll v.

Commissioner, 49 T.C. 557, 561-562 (1968). 
- 5 -

1 For tax years ending after Aug. 5, 1997, the Taxpayer

Relief Act of 1997, Pub. L. 105-34, sec. 1204(a), 111 Stat. 788,

995, amended sec. 162(a) to relax this rule in the case of

certain Federal employees assigned to temporary duty stations to

investigate Federal crimes. 

For each year in issue, petitioner claimed deductions for

meals and lodging expenses incurred in Guam. Respondent concedes

that the amounts deducted each year were paid or incurred for the

designated purposes. The parties disagree as to whether the

meals and lodging expenses were incurred while petitioner was

traveling away from his tax home for business purposes.

Generally, a taxpayer’s tax home is determined by the

location of the taxpayer’s regular or principal (if more than one

regular) place of business regardless of where the taxpayer’s

residence is located. See Mitchell v. Commissioner, supra at

581; Kroll v. Commissioner, supra at 561-562; sec. 1.911-2(b),

Income Tax Regs. Usually, if the location of the taxpayer’s

regular place of business changes, so does the taxpayer’s tax

home--from the old location to the new location--unless the

period of employment at the new location is, or is reasonably

expected to be, temporary. See Kroll v. Commissioner, supra, at

562-563; Mitchell v. Commissioner, T.C. Memo. 1999-283. By law,

a “taxpayer shall not be treated as being temporarily away from

home during any period of employment if such period exceeds 1

year.” Sec. 162(a).1

According to petitioner Guam was not his tax home during the
- 6 -

years in issue because his assignment there was temporary.

See Horton v. Commissioner, 86 T.C. 589, 593-595 (1986); Mitchell

v. Commissioner, T.C. Memo. 1999-283. Respondent, relying upon

the above-quoted language of section 162(a), contends that

petitioner’s assignment to Guam cannot be considered temporary. 

Respondent points out that petitioner’s assignment to Guam was

for an initial period of 2 years and 

that petitioner actually spent 3 years there. According to

respondent, petitioner’s tax home was Guam during the period 

that he was assigned and lived there. Respondent argues that the

meals and lodging expenses incurred by petitioner during his Guam

assignment are nondeductible personal expenses because the

expenses were not incurred while petitioner was traveling away

from his tax home. See sec. 262(a). For the following reasons,

we agree with respondent.

As an NCIS special agent, petitioner was required to

relocate, and did so, regularly during his career. Given his

employment history, we can understand why petitioner might

consider all of his assignments to be temporary, as that word is

commonly used and understood. Nevertheless, because petitioner’s

assignment to Guam was for a period that exceeded 1 year, it

cannot be treated as a temporary assignment for Federal income

tax purposes. Consequently, when he was transferred from

Virginia Beach to Guam, Guam became his regular place of business
- 7 -

and therefore his tax home. It follows that he is not entitled

to deductions for meals and lodging expenses while working in

Guam, and respondent’s determinations in this regard are

sustained.

II. Section 6651(a)(1) Addition to Tax

Petitioner’s 1996 Federal income tax return was due on or

before April 15, 1997, see sec. 6072(a), but it was not filed

until December 10, 1997. 

Section 6651(a)(1) provides for an addition to tax of 5

percent of the amount of the tax required to have been shown on

the return if the failure to file is for not more than 1 month,

with an additional 5 percent for each month in which the failure

to file continues, to a maximum of 25 percent of the tax in the

aggregate. If an income tax return is not filed within 60 days

of the prescribed date for filing (including extensions), the

addition to tax imposed is not less than the lesser of $100 or

100 percent of the amount required to be shown as a tax on the

return. See sec. 6651(a). The addition to tax is applicable

unless it is shown that the failure to file is due to reasonable

cause and not due to willful neglect. See id.

Petitioner’s 1996 return was filed more than 60 days after

April 15, 1997. The amount required to have been shown as a tax

on that return exceeds $100. In the notice of deficiency,

respondent determined that petitioner was liable for a $100
- 8 -

addition to tax under section 6651(a). Petitioner did not

explain why his 1996 return was filed late. Because petitioner

has not demonstrated that his failure to file a timely 1996

Federal income tax return was due to reasonable cause and not due

to willful neglect, he is liable for the addition to tax under

section 6651(a)(1) as determined by respondent.

Reviewed and adopted as the report of the Small Tax Case

Division.

Based on the foregoing,

Decision will be

entered for respondent.