Susan D. Thompson, Petitioner

T .C . Summary Opinion 2009-11 1

UNITED STATES TAX COUR T

SUSAN D . THOMPSON, Petitioner v . COMMISSIONER OF INTERNAL REVENUE, Responden t Docket No . 14031-07S . Filed July 20, 2009 .

Susan D . Thompson, pro se .

Blake W . Ferguson and Olivia Hyatt , for respondent .

JACOBS, Judge : This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect when the petition was filed . Pursuant to section 7463(b), the decision to be entered is not reviewable by any other court, and this opinion shall not be treated as precedent for any othe r case .

SERVED Jul 20 2009 Respondent determined a $1,553 deficiency with respect t o petitioner's Federal income tax for 2005 .

The . issues for decision are : (1) Whether $50 of interes t accrued on money in a bank account jointly held by petitioner and her father is taxable to petitioner, and (2) whether petitioner is entitled to .claimed business expense deductions for : (a ) travel of $1,560, and (b) meals .of $4,158 .

All section references are to the Internal Revenue Code in effect for 2005, and all Rule references are to the Tax Court Rules of Practice and Procedure .

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

The stipulation of facts and the attached exhibits are incorporated herein by this reference .

Until June 2005 petitioner resided in Galveston, Texas, where she worked off and on as a licensed massage therapist, earning minimal income . She lived with her boyfriend in his home . She did not pay rent or utility expenses, but she did pa y the monthly DIRECTV satellite television bill .

In June of 2005 petitioner accepted temporary employment with CodyCole USA, Inc . (CodyCole), a security firm, to provide on-site monitoring of a construction site in Shreveport , 'It is unclear from the record whether petitioner properly reduced the amount deducted for meals to comply with the limitation of sec . 274(n) .

Louisiana . Petitioner's job, which was to last 6 months, required her to live on the construction site and to provide 24- hours-a-day, 7 days-a-week monitoring services . To perform her job, petitioner decided to live in her mobile home, which was then stored at Rigsby Island, Washington . She went to Rigsby Island, retrieved the mobile home, and drove it to the f..

construction site in Shreveport . Petitioner lived in her mobile home for 189 days during 2005 .

Petitioner left personal belongings with her boyfriend in Galveston, including a hydraulic massage table, stereo equipment, and a television . She intended to, and did, return to Galveston upon termination of her employment with CodyCole . .

At all times during 2005 petitioner considered herself a resident of Galveston . Evidencing this intent were : (1) Petitioner's mobile home . was registered in Texas, (2) petitioner paid Texas personal taxes on the mobile home, and (3) petitioner maintained a bank account and post office box in Galveston .

Petitioner engaged H&R Block to prepare her 2005 Federal income tax return . On Schedule C, Profit or Loss From Business, attached to her 2005 tax return, petitioner deducted $4,15 8 as meal expenses (using the 2005 Federal per diem rate for meals) and $1,560 as travel expenses incurred in connection with petitioner's driving her mobile home from Rigsby Island to Shreveport .

Petitioner and her father jointly held .an interest-bearing account at ALMACO Federal Credit Union . During 2005 $50 of interest accrued on the money held in that account . Petitioner did not report any of the $50 on her 2005 tax return .

Upon audit of petitioner's 2005 tax return, . respondent determined that (1) petitioner should have reported the entire $50 of interest income on her 2005 tax return, and (2) the aforementioned business travel and meal expenses were improperly deducted on Schedule C .

A .

Interest Incom e Discussio n As noted above, respondent contends that petitioner received, and should have included in gross income, the .

aforementioned $50 of interest . At trial petitioner credibly testified that the money in the account, including interest, wa s her father's and that the sole .reason petitioner had access t the money . was to pay her father's bills . We are satisfied with this explanation and thus hold that, contrary to respondent's determination, no part of the $50 of interest is taxable to petitioner .

B .

Meal and Travel Expense Deduction s Section 162(a) allows a deduction for all ordinary and necessary expenses paid or incurred in carrying on a trade or business . Section 162(a)(2) allows a taxpayer to deduct traveling expenses, including amounts expended for meals, if such expenses are : (1) Ordinary 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) .

Services performed by an employee constitute a trade or business for this purpose .

O'Malley v . Commissioner , 91 T .C . 352, 363-364 (1988) .

Petitioner asserts that she is entitled to deduct $4,158 of meal expenses and $1,560 of . travel expenses as business expenses related to her employment with CodyCole . Petitioner' s entitlement to the claimed deductions for business travel and meal expenses turns on whether such expenses were "incurred while away from home" . To be "away from home" so as to claim traveling expenses, a taxpayer must have a "tax home" . This Court has held that for purposes of section 162(a)(2) a taxpayer's "home" is generally the vicinity of the taxpayer's principal place of employment .

Mitchell v . Commissioner , 74 T .C . 578, 581 (1980) ; Daly v . Commissioner , 72 T .C . 190, 195 (1979), affd . 662 F .2d 253 (4th Cir . 1981) .

A taxpayer's residence, when different from the .vicinity of the taxpayer's principal place of employment, may be treated as the taxpayer's tax home if the taxpayer's employment i s "temporary" rather than "indefinite" .

Peurifoy v . Commissioner , 358 U .S . 59, 60 (1958) . Petitioner's employment was clearly temporary ; the job was to last 6 months and, in fact, lasted 189 days . Therefore, we must determine whether petitioner's-previous Galveston residence continued to constitute her "tax home" while she lived in the mobile home on the construction site i n Shreveport .

If a taxpayer does not have a tax home from which he/she can be away, then he/she is not entitled to a deduction under section 162(a)(2) . A taxpayer without a tax home is deemed to have "`carried his home on his back'", to have been an itinerant, and is not entitled to a deduction because he/she was not "away from home" . See Henderson v . Commissioner , T .C . Memo . 1995-559 (quoting Hicks v . Commissioner , 47 T .C . 71, 73 (1966)), affd . 143 F .3d 497 (9th Cir . 1998) ; see also Wirth v . Commissioner , 61 T .C .

855, 859 (1974) ; Hicks v . Commissioner , supra at 74 .

The purpose of the "away from home" provision is to mitigate the burden of the taxpayer who, because of exigencies of his/her trade or business, must maintain .two places of abode and thereby incur additional and duplicate living expenses .

Kroll v .

Commissioner , 49 T .C . 557, 561-562 (1968) ; Hicks v . Commissioner , supra at 74 . A taxpayer has a "home" when he/she has incurred substantial continuing living expenses at a permanent place of abode .

Barone v . Commissioner , 85 T .C . 462, 465 (1985)', affd .

without published opinion 807 F .2d 177 (9th Cir . 1986) ; see James v . United States , 308 F .,2d 204, 208 (9th Cir . 1962) . The question of whether a taxpayer has a tax home is factual .

Barone v . Commissioner , supra at 466 .

In Barone , the taxpayer was a long-haul trucker . He deducted expenses for food purchased when he was on the road as well as other expenses . When he was not . on the road, he resided at his parent's house . The taxpayer paid his . share of the ., electric and telephone bills plus $2 aday when he was at his parents' house and $1 a day when he was on the road . In rejecting the taxpayer's contention that his tax home was his parent's house, we stated :

While the subjective intent of the taxpayer is to be considered in determining whether he has a tax home, for purposes of section 162(a)(2), this Court and other s consistently have held that objective financial criteria bear a closer relationship to the underlying purpose of the deduction . The section is intended to mitigate the burden of a taxpayer who, because of the travel requirements of his trade or business, must maintain two places of abode and therefore incur additional living expenses . * * * Section 162(a)(2) provides some relief for a taxpayer who incurs `substantial continuing expenses" of a home which are duplicated by business travel away from home on a temporary basis, by allowing a deduction for the expenses of such travel . * * * Petitioner's total payment to his parents for the use of a bedroom and bathroom in their house amounts to $503 fo r the taxable year 1981 . . This token amount together with the payments he made for his share of the electric and telephone bills does not constitute substantial, continuing living expenses . * * * Id . at 465-466 (fn . ref . omitted) .

Before June 25, 2005, petitioner resided in Galveston with her boyfriend at his home . At no time during 2005 did she pay rent or utilities . Rather, until June 2005, she paid a modest amount for the household's DIRECTV satellite televisio n subscription . Consequently, petitioner did not have substantial, continuing living expenses at her boyfriend's Galveston residence while living in Shreveport . At no time during 2005 di d petitioner maintain two places of abode . Hence, she did not incur additional and duplicate living expenses while living in Shreveport . Accordingly, petitioner is not entitled to the travel and meals business expense deductions claimed .

To reflect the foregoing, and because petitioner's earned income tax credit and self-employment tax must be recomputed , Decision will be entere d under Rule 155 .