Opinion
Docket No. 16971.
1949-07-5
MOSES MITNICK (ALSO KNOWN AS EDDIE LEWIS), PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Lewis G. Lebish, Esq., for the petitioner. Whitfield J. Collins, Esq., for the respondent.
Upon the facts, held (1) petitioner has not established that he had any ‘home‘ within the meaning of section 23(a)(1)(A), Internal Revenue Code, and his traveling expenses for the years 1942, 1943, and 1944, therefore, were not sustained his burden of proof as to other expenses for which he claimed deductions for those years. Lewis G. Lebish, Esq., for the petitioner. Whitfield J. Collins, Esq., for the respondent.
Respondent determined deficiencies in petitioner's income tax for the years 1943 and 1944 in the respective amounts of $893.84 and $274.90. Respondent made certain adjustments in petitioner's income for the year 1942, but, due to the forgiveness feature of the Current Tax Payment Act of 1943, deficiencies were determined only for the years 1943 and 1944. The basic question is whether petitioner should be permitted deductions for alleged traveling, entertainment, and other business expenses, and for contributions and payments of taxes during the years involved.
FINDINGS OF FACT.
During 1942, 1943, and 1944 petitioner was a nonresident alien, doing business in this country. His tax returns for those years were filed with the collector of internal revenue for the third district of New York.
Petitioner was a citizen of Canada during the years involved. From 1923 to 1939 petitioner spent most of his time in Paris, France. In 1939 he left Paris and came to the United States to manage theatrical companies. He remained in the United States from that time until 1946. He did not visit or live in Canada between 1939 and the end of 1944. From time to time petitioner gave money to his brother, who lived in Canada, whenever the latter visited this country. During part of 1942 and 1943 petitioner maintained an apartment in New York City. In 1944 he spent most of his time on the west coast.
During 1943 and 1944 petitioner was a theatrical or company manager of certain shows. His duties consisted of collecting the money for the shows, arranging for transportation of personnel and all equipment used by the company, paying the personnel, and taking care of other details connected with the shows. The companies which he managed during the years involved were comprised, on the average, of six or seven people.
In 1942 petitioner was with a show which traveled over the United States for approximately 34 weeks. In 1943 the show which he managed traveled for 43 weeks. Four or 5 of those weeks were spent in New York City. In that year he was employed by Clifford Fisher of New York City and W. F. F. B. Corporation of San Francisco, California. In 1944 the show he managed traveled for a period of 17 weeks.
In 1943 the show of which petitioner was manager traveled to the following cities:
+---------------------------------------------------------+ ¦Dayton, Ohio. ¦Minneapolis, Minn. ¦St. Louis, Mo. ¦ +------------------+--------------------+-----------------¦ ¦Louisville, Ky. ¦St. Paul, Minn. ¦Detroit, Mich. ¦ +------------------+--------------------+-----------------¦ ¦Indianapolis, Ind.¦Des Moines, Iowa. ¦Cincinnati, Ohio.¦ +------------------+--------------------+-----------------¦ ¦Davidson, Ark. ¦Sioux Falls, S. Dak.¦Philadelphia, Pa.¦ +------------------+--------------------+-----------------¦ ¦Milwaukee, Wis. ¦Omaha, Nebr. ¦Washington, D. C.¦ +------------------+--------------------+-----------------¦ ¦Madison, Wis. ¦Kansas City, Mo. ¦ ¦ +---------------------------------------------------------+
Petitioner was paid a salary by his employer as manager of the show and in addition was allowed an expense account.
In his capacity as manager petitioner incurred certain expenses for meals, hotels, taxi fares, tips, telephone calls, secretarial help and entertainment.
In his tax return for 1942 petitioner claimed deductions as follows:
+-------------------------------------------------------+ ¦Contributions ¦ ¦$200 ¦ +------------------------------------------+------+-----¦ ¦Taxes ¦ ¦755 ¦ +------------------------------------------+------+-----¦ ¦Other deductions: ¦ ¦ ¦ +------------------------------------------+------+-----¦ ¦Hotel and meals at $60 weekly ¦$2,040¦ ¦ +------------------------------------------+------+-----¦ ¦Transportation ¦310 ¦ ¦ +------------------------------------------+------+-----¦ ¦Tips to porters, bell boys and stage hands¦250 ¦ ¦ +------------------------------------------+------+-----¦ ¦Entertainment ¦450 ¦ ¦ +------------------------------------------+------+-----¦ ¦ ¦_____ ¦3,050¦ +-------------------------------------------------------+
Of these amounts, respondent disallowed $100 for contributions and $75 for taxes for lack of substantiation. In addition, respondent disallowed the entire amount of $3,050, because it was expended for ‘personal living expenses.‘ Petitioner claimed a deduction for travel and entertainment expenses in 1943 in the amount of $2,580 and in 1944 in the amount of $1,120, $1,020 being for traveling expenses and $100 for entertainment. Respondent disallowed such deductions ‘because they are personal expenses and are not deductible for Federal income tax purposes.‘
During the years here involved petitioner had no permanent place of residence and no business headquarters.
OPINION.
HILL, Judge:
Respondent contends petitioner should not be allowed any deductions for the expenditures involved for the reasons (1) that petitioner has not established any ‘home‘ within the meaning of section 23(a)(1)(A) of the Internal Revenue Code,
and, therefore, disbursements that he made while on the road with the shows were personal expenses and not deductible (sec. 24(a)); and (2) that he has failed to sustain his burden of proof with respect to the amount of the deductions claimed. Petitioner claims that he has proved both a home within the meaning of section 23(a)(1)(A) and the incurrence of the expenses which he claimed as deductions during the years in question.
See section 213, Internal Revenue Code, and section 29.213-1(b) of Regulations 111, which provide for the allowable deductions in the case of a nonresident alien is engaged in a trade or business within the United States, he may have deductions for ordinary and necessary business expenses under section 23(a)(1)(A) of the code.
In Mort L. Bixler, 5 B.T.A. 1181, 1184, we said that a taxpayer's ‘home‘ as that term is used in the statute,
was his ‘place of business, employment, or post or station at which he is employed.‘ That definition was cited with approval in Walter M. Priddy, 43 B.T.A. 18, 31.
Section 214(a)(1) of the Revenue Act of 1921, which was later incorporated in the code as section 23(a)(1)(A).
Petitioner claims that Canada was his home during the years involved and that he was ‘in a travel status and is entitled to claim traveling and living expenses in connection with his trade or business within the United States. ‘ He had lived in Paris from 1923 until 1939, when he came to the United States for the purpose heretofore stated. The evidence is vague as to whether he ever lived in Canada after 1923, but it is definite that he never visited Canada from 1939 until after 1944 and that his business headquarters were never there. He claims that he paid rent to his brother, who lived in Montreal, Canada, the mode of payment being amounts given to his brother whenever he visited petitioner in the United States. The amounts of such payments or how often they were made are not disclosed by the record. We can not conclude from that evidence that petitioner has established a ‘home‘ in Canada for the years involved.
Neither can we find from the record that he had a permanent or principal place of employment within the United States. The only evidence pertaining to any headquarters in this country was his testimony that he never submitted an expense account while in New York City and that he maintained an apartment part time in that city during the taxable years 1942 and 1943, and the listing of Clifford Fisher of New York City as his employer during the taxable year 1943. There is no showing in the record, however, of how much time he spent in New York City, except that he was there three or four weeks in 1943. We do not believe that those facts prove a permanent headquarters or principal place of business for the years involved, particularly in view of the fact that petitioner apparently never considered New York City his headquarters, for he has not alleged that it or any other place, except Montreal, Canada, was his ‘home‘ during such period.
Hence, the evidence is not sufficient to justify any of petitioner's expenditures involved as traveling expenses while away from home in pursuit of a trade or business; his home being, so far as the record shows, wherever a particular show he managed happened to be. The traveling expenses, therefore, were personal expenses and not deductible. Sec. 24(a), I.R.C. See Charles E. Duncan, 17 B.T.A. 1088, distinguished in Charles G. Gustafson, 3 T.C. 998.
Moreover, we can not say from the facts that respondent's disallowance of the entertainment and other business expenses was error. The only evidence presented concerning the amounts of such expenditures was petitioner's estimation. Moreover, he was given an expense account. The amount of that account or for what he was reimbursed can not be adequately ascertained from the record. It might be that the expense account was more than sufficient to cover any of his disbursements for entertainment or other business expenses. In this respect the case at bar differs from Cohan v. Commissioner, 39 Fed. (2d) 540. Petitioner has failed to overcome the prima facie correctness attaching to respondent's determination with respect to those items.
The pleadings also raised the issue of deductibility of $100 for contributions and taxes of $75 allegedly paid by petitioner during the taxable year and taxes of $75 allegedly paid by petitioner during the taxable year 1942. Respondent disallowed those deductions for ‘lack of substantiation.‘ Petitioner presented no proof whatsoever concerning those amounts at the hearing, and respondent's disallowance of those items, therefore, will not be disturbed.
It follows that respondent did not err in his determination.
Decision will be entered for respondent.