Opinion
Docket Nos. 5296-65 2167-68.
1970-04-8
LLOYD G. JONES AND MARILYN A. JONES, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Lloyd G. Jones, pro se. W. John Howard, Jr., for the respondent.
Lloyd G. Jones, pro se. W. John Howard, Jr., for the respondent.
Pursuant to an incentive program maintained by his employer, Mobil, petitioner was granted a 3-year release from status as an active employee at Mobil's laboratory in Dallas, Tex., to undertake studies at Ohio State University in Columbus, Ohio. During the entire period of his enrollment at Ohio State petitioner remained an employee of Mobile. Held, no part of the expenses for petitioner's meals and lodging while he was residing in Columbus is deductible. Held, further, unreimbursed expenses incurred by petitioner in moving his family from Dallas to Columbus in 1963 are not deductible under sec. 162(a), I.R.C. 1954.
FEATHERSTON, Judge:
Respondent determined the following deficiencies in petitioners' income tax:
+----------------------+ ¦Year ¦Deficiencies ¦ +------+---------------¦ ¦ ¦ ¦ +------+---------------¦ ¦1963 ¦$824.42 ¦ +------+---------------¦ ¦1964 ¦983.80 ¦ +------+---------------¦ ¦1965 ¦954.70 ¦ +------+---------------¦ ¦1966 ¦1,110.87 ¦ +----------------------+
The issues submitted for decision are as follows:
As a consequence of his determination increasing petitioners' adjusted gross income for 1965 and 1966, respondent disallowed part of the medical expense deductions claimed by petitioners for those years. The proper amounts of such deductions will be computed under Rule 50.
I realize that the parties could agree to appellate review in a different circuit, but it is highly unlikely that the respondent would make such an agreement.
(1) Whether the expenses for petitioner's meals and lodging, incurred during the 3 years he was attending graduate school (under his employer's incentive program) in a locale different from his post of employment immediately prior and immediately subsequent thereto, are deductible under section 162(a).
All section references are to the Internal Revenue Code of 1954, as amended, unless otherwise noted.
(2) Whether the expenses incurred by petitioner in moving his family from Dallas, Tex., to Columbus, Ohio, in 1963 are deductible under section 162(a).
FINDINGS OF FACT
At the time the petition in docket No. 5296-65 was filed, petitioners, husband and wife, were legal residents of Columbus, Ohio. At the time the petition in docket No. 2167-68 was filed, they were legal residents of Dallas, Tex.
Petitioners filed their joint Federal income tax returns for 1963, 1964, and 1965 with the district director of internal revenue, Cincinnati, Ohio. They filed their joint Federal income tax return for 1966 with the district director of internal revenue, Dallas, Tex. For convenience, Lloyd G. Jones will be referred to as petitioner.
Petitioner attended Ohio State University as an undergraduate student during the middle 1950's, majoring in petroleum engineering. In 1959 he was graduated from the same university with a master's degree in chemical engineering. Upon graduation, and until September 1963, he was employed by Socony Mobil Oil Co., Inc., now Mobil Oil Corp. (hereinafter referred to as Mobil), as a chemical engineer, assigned to do research work at the Field Research Laboratory in Dallas.
His work consisted of making tests of oil wells to determine their potential productivity.
The laboratory was subsequently organized as a wholly owned subsidiary of Mobil and is now known as Mobil Research & Development Corp. References herein to Mobil will include this latter corporation.
In a letter dated August 1, 1963, Mobil informed petitioner that he was being offered an ‘Incentive Fellowship.’ The fellowship was granted to petitioner upon certain conditions, including the following:
2. The course of study selected must be in a field of interest to the Laboratory.
3. During the period of this arrangement you will remain on the Company payroll and will retain the status of an employee in the sense that you will not surrender your rights to employee benefits such as the annuity and retirement plan and the savings plan, nor will you be relieved of your existing obligations to the Company, such as the undertakings of your invention assignment agreement.
5. We will expect you to maintain a standard of behavior consistent with your status as an employee of Socony Mobile Oil Company, Incorporated. You will pursue the approved course of study for a continuous period (except for vacations to which you are entitled as a Company employee) until you have duly qualified for graduation with the degree Doctor of Philosophy, or its equivalent. However, we must place a time limit on the arrangement, and it will terminate on August 31, 1966. Further, we reserve the right to effect the termination of the arrangement at any time if, in our judgment, proper standards of conduct and scholarship are not maintained. In this connection, you will be obligated to provide us, at the end of each term, with a photostatic copy of the official record of courses which you have taken and the grades you have received.
6. We reserve the right to require you to return to active status in the event of a National Emergency. * * *
7. We will expect you to resume the status of an active employee in this Laboratory on a full-time basis promptly upon completion of your studies under this agreement or promptly upon termination of your studies under this agreement prior to completion thereof if such such termination of your studies is the result of action on your part.
8. You will agree to remain in the Company's employ for two years from the date of resumption of your full-time active status on the Laboratory staff pursuant to Paragraph 7. During the two-year period, you will not seek or accept employment with any person, firm, or corporation unless your employment with this Company is terminated by this Company, or you are released in writing from this obligation. Throughout this period, the Company reserves its right of termination with or without cause.
9. Your salary while an Incentive Fellow will be affected by such general adjustments in base pay as apply to professional employees of the Field Research Laboratory. * * *
Petitioner accepted Mobil's offer on August 7, 1963, and, after investigating several schools, he selected Ohio State as the one at which to undertake his studies. One factor affecting his choice was that some of the credits he had earned while obtaining his master's degree would apply toward his Ph. D. requirements.
In early August 1963 petitioners rented their former residence in Dallas to a lessee. The net rental income from this property was reported in their income for 1963 through 1965.
Petitioner's wife and children traveled to Ohio by train in early August, and petitioners' children stayed with their grandparents, who lived near Ohio State, until petitioners located suitable housing. About the middle of August petitioner rented a U-Haul trailer, loaded it with household goods, and drove the approximately 1,100 miles from Dallas to Columbus. Petitioners incurred the following expenses in moving from Dallas to Columbus, none of which were reimbursed by Mobil:
+---------------------------------------------------------------+ ¦Railroad fare for petitioner's wife and two children ¦$57.74¦ +--------------------------------------------------------+------¦ ¦Labor ¦10.00 ¦ +--------------------------------------------------------+------¦ ¦Servicing a washing machine and refrigerator ¦6.50 ¦ +--------------------------------------------------------+------¦ ¦Rental of trailer ¦103.45¦ +--------------------------------------------------------+------¦ ¦Rental of dolly ¦1.53 ¦ +--------------------------------------------------------+------¦ ¦Estimated automobile expense, 1,100 miles at 8 cents per¦ ¦ +--------------------------------------------------------+------¦ ¦mile ¦88.00 ¦ +--------------------------------------------------------+------¦ ¦Total ¦267.22¦ +---------------------------------------------------------------+
On or about September 1, 1963, petitioner enrolled in Ohio State as a candidate for the degree of doctor of philosophy in Chemical Engineering. On November 7, 1963, Mobil sent a check in the amount of $750 to Ohio State, accompanied by the following explanation:
Our Incentive Fellowship Plan, in addition to the support given to the Incentive Fellow, recognizes that a student's tuition does not cover all costs associated with his education. In view of this, it is our policy to make a grant in the amount of $750 for the unrestricted use of the department in which the Incentive Fellow is enrolled. Our most recent Incentive Fellow, Mr. Lloyd G. Jones, is now enrolled in the Department of Chemical Engineering. Enclosed is our check No. 273596 in the amount of $750. These funds are for the unrestricted use of the Department of Chemical Engineering. If you have any questions with regard to the grant, please do not hesitate to contact us.
Mobil made similar grants to Ohio State in 1964 and 1965.
In late August or early September 1963 petitioner, his wife, and two children moved into a rented house in Columbus, where they lived until they moved to another rented residence in that city, following the birth of their third son in March 1964. Petitioners obtained Ohio tags for their automobile, subscribed to a local newspaper, and opened a joint checking account at a Columbus bank. However, they continued to pay the Texas poll tax, maintaining their voting registration in Dallas, retained their Texas driver's licenses, and retained ownership of their home in Dallas until 1966, when they sold it at a loss of $873.93.
Throughout the entire period that petitioner resided in Columbus, Mobil maintained him on the payroll of the Dallas office, sending him bimonthly salary checks totaling $3,452 in 1963, $10,356 in 1964, $10,356 in 1965, and $6,904 in 1966. Petitioner also retained his employee benefits, including life insurance, group hospitalization (for himself and his family), an annuity or retirement plan, and a savings plan. Petitioner made periodic reports to Mobil, which consisted mainly of transcripts of his grades in his courses of study.
Petitioners paid rent for their residences in Columbus in the total amounts of $540 in 1963, $1,700 in 1964, $1,860 in 1965, and $1,240 in 1966. In addition, they paid utilities bills in the approximate amounts of $30 per month. The family food bill amounted to about $120 per month, of which one-third was attributable to petitioner.
While he was enrolled in Ohio State from September 1963 to August 1966, petitioner made only one trip to Dallas, in the summer of 1966. During this trip it was decided by the laboratory manager of Mobil that petitioner would return to Dallas to work in September, which he did, resuming the same general type of work he had done from 1959 until 1963. Petitioner completed his dissertation after returning to Dallas and received his Ph. D. degree at the next graduation exercises of Ohio State.
In their returns for 1963 through 1966 petitioners (1) excluded from their income, as a fellowship grant, the payments received from Mobil during petitioner's enrollment in Ohio State, (2) deducted petitioner's expenses for tuition, fees, and books, and (3) deducted $40 per month (i.e., $160 for 1963, $480 for 1964, $480 for 1965, and $320 for 1966) as ‘the added cost of living in Ohio over Texas.’ In addition, they deducted the expenses incurred in 1963 in moving from Dallas to Columbus and those incurred in 1966 in moving back to Dallas.
In the notices of deficiency respondent determined that petitioners were not entitled under section 117 to have the sums received from Mobile treated as nontaxable income from a fellowship grant. Respondent further determined that the deductions claimed for moving expenses in 1963 and ‘the added cost of living,‘ e.e., meals and lodging, for all 4 years were not allowable under section 162 or section 212.
OPINION
Petitioner has now conceded, in light of the Supreme Court's recent decision in Bingler v. Johnson, 394 U.S. 741 (1969), that the bimonthly payments he received from Mobil while he was enrolled in Ohio State did not constitute a fellowship grant within the meaning of section 117 and that he continued to be an employee of Mobil during that time. Thus, since respondent did not disallow the deductions claimed for the direct expenses (for fees, tuition, books, etc.) incurred by petitioner at Ohio State or for the expenses of moving his family from Columbus to Dallas in 1966, we are left only with the questions as to the deductibility of (1) the expenses for petitioner's meals and lodging while he was at Ohio State, and (2) the expenses incurred by petitioner in moving his family from Dallas to Columbus in 1963, prior to the effective date of section 217.
The provisions of sec. 217 apply to expenses incurred after Dec. 31, 1963, in taxable years beginning after such date.
At the outset, we feel constrained to note that petitioner handled his own case pro se, and unfortunately he has not defined his legal position regarding the deductions for meals and lodging with any degree of clarity. From one stage of this litigation to the next he has vacillated between claiming deductions of $40 for each month he and his family resided in Columbus as the ‘added costs of living in Ohio over Texas'— the position taken in his returns, in his original petitioner, and at the trial— and claiming deductions for his proportionate share posture he took in his amended petitions and on brief. Yet, as to the former, he does not indicate whether the amounts claimed represent the added costs for the whole family or for himself alone; and while he presented evidence as to his expenses for meals and the family's expenses for rent and utilities in Columbus the record is barren of any evidence of what the comparable expenses in Dallas would have been.
In the view we take of the case, however, we are not required to hold petitioner to either of these positions. Even if petitioner had presented a legal theory to justify deducting the difference in the living expenses— and he has not— he would not prevail thereunder because of his failure to produce evidence as to what those expenses would have been in Dallas. And, for the reasons discussed below, petitioner may not deduct his meals and lodging expenses incurred while he was attending school in Columbus.
Petitioner stakes his claim to deductions for the meals and lodging on the first sentence of section 1.162-5(d), Income Tax Regs., which, as applicable to the years in issue,
This section of the regulation was amended subsequent to the tax years and renumbered as sec. 1.162-5(e)(1). T.D. 6918, 1967-1 C.B. 36. The only amendment pertinent to the present controversy was the addition of the following sentence:The rules set forth in this paragraph are subject to the provisions of section 162(a)(2), relating to deductibility of certain traveling expenses, * * * , and the regulations thereunder.We do not believe that this amendment affects the outcome of the present controversy, since the substance thereof was implicit in the prior regulation.
If a taxpayer travels away from home primarily to obtain education the expenses of which are deductible under this section, his expenditures for travel, meals, and lodging while away from home are deductible.
Petitioner contends that in August 1963 he traveled away from his home in Dallas to Columbus to study at Ohio State, and that he remained in travel status until September 1966. Thus, the issue is whether petitioner was ‘away from home’ while attending Ohio State.
The rules for determining the deductibility of the expenses of traveling ‘away from home’ for education are clearly the same as for traveling expenses under section 162(a)(2).
The word ‘home’ as used in that section is a term of art. It does not mean the taxpayer's domicile; rather it means his ‘tax home,’ i.e., the location of his principal place of business, employment, or station of duty. Rendell Owens, 50 T.C. 577, 581 (1968); Ronald D. Kroll, 49 T.C. 557, 561-562 (1968); Raymond E. Kershner, 14 T.C. 168, 174 (1950). ‘The job, not the taxpayer's pattern of living,‘ is the crucial factor. Carragan V. Commissioner, 197 F.2d 246, 249 (C.A. 2, 1952), affirming a Memorandum Opinion of this Court; cf. Commissioner v. Stidger, 386 U.S. 287 (1967). A taxpayer continues to have his ‘home’ at his regular place of employment if he accepts ‘temporary employment of short duration’ at another location; but if the assignment is of ‘substantial’ or ‘indefinite’ duration, the second location becomes his ‘home’ within the meaning of section 162(a)(2). Commissioner v. Peurifoy, 254 F.2d 483, 486-487 (C.A. 4, 1957), affirmed per curiam 358 U.S. 59 (1958); Cockrell v. Commissioner, 321 F.2d 504, 507 (C.A. 8, 1963), affirming 38 T.C. 470 (1962).
SEC. 162. TRADE OR BUSINESS EXPENSES.(a) IN GENERAL.— THERE shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—(2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; * * *
Petitioner argues that his stay in Columbus as a student was by its very nature temporary, since he had committed himself to return to Dallas upon completing 3 years of work on his doctorate. But the basic purpose of the ‘away from home’ provision is to mitigate the burden of the taxpayer who is required by the exigencies of business to maintain two places of abode, thereby incurring duplicate living expenses. James v. United States, 308 F.2d 204, 207 (C.A. 9, 1962); Ronald D. Kroll, supra at 562. The provision is not designed to benefit an employee or a self-employed individual who relocates himself and his family at a new post of duty for an indefinite or substantial period of time.
Petitioner's agreement with Mobil called for him to remain in Columbus for 3 years, a substantial time span that can hardly be viewed as ‘temporary’ or ‘of short duration.’ Indeed, in view of this length of time, it was reasonable to expect him to move his residence to Columbus, see Ronald D. Kroll, supra at 562, even though his domicile may have remained in Dallas. While residing in Columbus he leased his home in Dallas to a tenant, receiving rental income therefrom until he sold the property in 1966. Thus, he incurred no duplicate living expenses. His post of duty was at Ohio State, not Dallas; therefore, Columbus became his ‘home.’ Accordingly, he is not entitled to deduct his expenses for meals and lodging there. Such costs were nondeductible ‘personal, living or family expenses' within the meaning of section 262.
Nor is petitioner entitled to deductions for the moving expenses incurred in 1963. Such expenses were not ordinary and necessary expenses of petitioner's trade or business or traveling expenses while he was away from home. For years prior to 1964 the Internal Revenue Code contained no provisions specifically authorizing the deduction of unreimbursed expenses incurred by employees in moving themselves and their families from one principal place of work to another. See fn. 4 supra. This Court has issued three opinions in recent years holding that such expenses were deductible under section 162(a), but we were reversed in each case. Wilson v. Commissioner, 412 F.2d 314 (C.A. 6, 1969), reversing 49 T.C. 406 (1968); Commissioner v. Dodd, 410 F.2d 132 (C.A. 5, 1969), reversing a Memorandum Opinion of this Court; Commissioner v. Mendel, 351 F.2d 580 (C.A. 4, 1965), reversing 41 T.C. 32 (1963). On further consideration, we are persuaded by the Courts of Appeals in these cases and will no longer follow our decisions therein. We find nothing in section 1.162-5, Income Tax Regs., that requires a different rule to be applied to employee-student like petitioner.
To reflect concessions of respondent.
Decisions will be entered under Rule 50.
Reviewed by the Court.
DRENNEN, J., concurring: While normally I would expect this Court to reexamine its views on a particular issue each time a Court of Appeals adopts the opposite view, I think it is a little late in the life of this issue, which has become extinct by act of Congress, for this Court to go through the formalities of reexamining its views and overruling three quite recent opinions of this Court on the issue, when the same result can be reached in another way.
Appeal of this case would, in the absence of agreement between the parties to the contrary, lie in either the Court of Appeals for the Fifth Circuit or the Court of Appeals for the Sixth Circuit, both of which courts have decided this issue in favor of respondent. See Commissioner v. Dodd, 410 F.2d 132 (C.A. 5, 1969), and Wilson v. Commissioner, 412 F.2d 314 (C.A. 6, 1969), respectively. I would decide this case for respondent on the theory that, regardless of the views of this Court on the Merits of the issue, the conclusions of the Court of Appeals on the issue is the controlling law for cases arising in those circuits. This would be a modification of the rule this Court announced in the oft-discussed case of Arthur L. Lawrence, 27 T.C. 713, which I would approve. See last paragraph of Judge Simpson's concurring opinion in Norvel Jeff McLellan, 51 T.C. 462.
RAUM and FORRESTER, JJ., agree with this concurring opinion.
SIMPSON, J., concurring: I agree that the moving expenses are not deductible in this case. Although I still believe that in principle such expenses should be deductible, I accept the decisions of the Courts of Appeals. This case would be appealed to either the Fifth or Sixth Circuit;
1 and since both of those circuits have held that such moving expenses are not deductible, I would follow those decisions, regardless of my individual views regarding them.