T.C. Memo. 1997-522

UNITED STATES TAX COURT

ELIZABETH H. AND ALBERT B. TURNER, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19966-95. Filed November 19, 1997.

Elizabeth H. Turner and Albert B. Turner, pro se.

Jaye Andras Caffrey, for respondent.

MEMORANDUM OPINION

PAJAK, Special Trial Judge: This case was heard pursuant to

section 7443A(b)(3) of the Code and Rules 180, 181, and 182. All

section references are to the Internal Revenue Code in effect for

the year in issue. All Rule references are to the Tax Court

Rules of Practice and Procedure.
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Respondent determined a deficiency in petitioners' 1991

Federal income tax in the amount of $2,971. The issue for

decision is whether petitioners are entitled to deductions for

"away from home" expenses pursuant to section 162(a)(2).

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

Petitioners resided in Houston, Texas, at the time they filed

their petition. For clarity and convenience, the findings of

fact and opinion have been combined.

Petitioner Elizabeth H. Turner (petitioner) was a college

professor. She taught United States history with a special

emphasis on the study of nineteenth and twentieth century

southern women.

From 1979 to 1982, petitioner taught history at Queens

College in Charlotte, North Carolina. Petitioners owned a house

in Charlotte, North Carolina, where they lived from January 1,

1974, through July 1, 1982. In 1982, petitioners moved from

Charlotte, North Carolina, to Houston, Texas. At that time, they

leased the house in Charlotte to tenants at least to the date of

trial.

Petitioners moved to Houston, Texas, because petitionerhusband accepted a job in Houston and so that petitioner could

pursue her doctorate degree in history at Rice University,

Houston, Texas. Petitioner received her Ph.D. in history from

Rice University in 1990.
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In 1989, petitioner was offered a guest lecturer teaching

position at the University of North Carolina at Charlotte, North

Carolina. She accepted the offer and moved to North Carolina. 

She taught United States and Southern History during the 1989-

1990 academic year at the University of North Carolina at

Charlotte. She replaced a faculty member who had taken a 1-year

leave of absence. Upon the completion of her term as guest

lecturer, the University of North Carolina at Charlotte was

unable to offer petitioner further employment.

As stated above, petitioner had taught at Queens College in

Charlotte, North Carolina, from 1979 to 1982. After applying to

many schools, petitioner again was offered a teaching position at

Queens College, Charlotte, North Carolina, for the 1990-1991

academic year. She accepted the position as an Assistant

Professor of History. Petitioner had a "tenure-track" position

at Queens College. 

Petitioners' teenage daughter, Laura, accompanied petitioner

to Charlotte, North Carolina. Laura attended high school in

Charlotte, North Carolina, from August 1990, through June 1991. 

Laura graduated from that high school in June 1991.

Laura applied to and was accepted at the North Carolina

School of the Arts in Winston-Salem, North Carolina, for the

1991-1992 academic year. She continued at the North Carolina

School of the Arts through the fall semester of 1992. 
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On November 5, 1990, while petitioner was employed at Queens

College, she applied for employment at the University of Alabama

at Birmingham and the University of South Alabama. On

November 18, 1990, petitioner applied for a position as Assistant

Professor of History at the University of Houston-Downtown,

Houston, Texas. Petitioner was not offered a position by either

university in Alabama.

In mid-March 1991, petitioner was offered employment by the

University of Houston-Downtown. By a May 10, 1991, letter from

the president of Queens College, petitioner was offered a

continued appointment as Assistant Professor of History for the

1991-1992 academic year. On May 13, 1991, the president of the

University of Houston-Downtown formally offered her a position. 

Petitioner accepted the offer from the University of HoustonDowntown.

On their 1991 Federal income tax return, petitioners claimed

deductions related to petitioner's employment in Charlotte, North

Carolina, in the amount of $9,586, as follows:

Rent $ 2,438

Electricity 665

Phone 784

Auto Expenses 862

Maintenance 360

Food 3,120

Postage 99

Return to Houston 1,158

Food 100

 Total 9,586
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Respondent disallowed all of the unreimbursed employee

business expenses on the basis that petitioner was not away from

her tax home when she incurred the expenses.

Deductions are a matter of legislative grace. New Colonial

Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). Petitioners bear

the burden to prove that respondent's determination is incorrect. 

Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933). 

Section 262 specifically disallows the deduction of personal

living expenses. However, section 162(a)(2) permits a deduction

for traveling expenses (including meals and lodging) incurred

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

qualify for this deduction, three conditions must be satisfied:

(1) The expense must be a reasonable and necessary traveling

expense; (2) the expense must be incurred while away from home;

and (3) the expense must be incurred in pursuit of business. 

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

determination of whether these conditions have been met is a

question of fact. Commissioner v. Flowers, supra at 470.

This Court has held that a taxpayer's home for purposes of

section 162(a)(2) is the vicinity of the taxpayer's principal

place of employment and not where his or her personal residence

may be located. Mitchell v. Commissioner, 74 T.C. 578, 581

(1980); Kroll v. Commissioner, 49 T.C. 557, 561-562 (1968). An

exception exists when a taxpayer accepts employment away from
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home which is temporary, as opposed to indefinite, in duration. 

Peurifoy v. Commissioner, 358 U.S. 59, 60 (1958). If the

employment is temporary, the tax home is considered to be the

place of the taxpayer's residence; whereas, if the employment is

indefinite, the tax home is the location of employment. Kroll v.

Commissioner, supra at 562. Employment is considered to be

temporary if termination within a short period could be expected. 

Mitchell v. Commissioner, supra at 581; Tucker v. Commissioner,

55 T.C. 783, 786 (1971). In contrast, employment is considered

indefinite if termination could not be expected or foreseen

within a fixed or reasonably short period of time. Mitchell v.

Commissioner, supra at 581. This expectation is measured by what

was contemplated at the time employment was accepted. 

McCallister v. Commissioner, 70 T.C. 505, 509 (1978). The

duration of employment is a factual issue, and no single element

is determinative. Norwood v. Commissioner, 66 T.C. 467, 470

(1976). 

Based on this record, we conclude that petitioner's

employment at Queens College was indefinite in 1991. Petitioner

had been employed previously by Queens College. During 1991,

petitioner was employed as a full-time assistant professor at

Queens College. It was a tenure-track position. Under the terms

of her contract, tenure may be granted after a designated

probationary period. A grant of tenure confers continuous
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appointment. Nothing in the record indicates that Queens College

expressed any intention to limit the duration of petitioner's

employment.

Petitioners argue that a tenure-track position should be

considered temporary because petitioner could be terminated after

her nine-month appointment. The absence of permanence does not

require a finding that petitioner's employment was temporary. 

Garlock v. Commissioner, 34 T.C. 611 (1960). An "employment

which merely lacks permanence is indefinite unless termination is

foreseeable within a short period of time." Kasun v. United

States, 671 F.2d 1059, 1061 (7th Cir. 1982); Boone v United

States, 482 F.2d 417, 419-420 (5th Cir. 1973) (This is the

circuit to which this case is appealable). 

Regardless of whether there existed the possibility that

petitioner would not be reappointed, we are convinced that

petitioner had a reasonable expectation that her employment at

Queens College would continue for a substantial or indefinite

period of time. In fact, petitioner was offered continued

employment at Queens College. However, she declined the offer. 

We conclude that petitioner's employment was indefinite,

and, therefore, she was not away from her tax home. Petitioner's 
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tax home in 1991 was Charlotte, North Carolina, and not Houston,

Texas. Respondent's determination is sustained.

Decision will be entered

for respondent.