Fisher v. Commissioner , 23 T.C. 218 ( 1954 )

Wilson John Fisher, Petitioner, v. Commissioner of Internal Revenue, Respondent

Fisher v. Commissioner

Docket No. 34413

United States Tax Court

23 T.C. 218; 1954 U.S. Tax Ct. LEXIS 48;

November 9, 1954, Filed

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Decision will be entered under Rule 50.

Petitioner, a native of Milwaukee, Wisconsin, was a professional musician, who performed as a soloist in hotel dining rooms and cocktail lounges in various cities in Wisconsin and Minnesota. He and his family lived, and had their place of abode, wherever petitioner happened to be working at the particular time, usually in the same hotel, and in 1947 the two hotels where he was employed furnished hotel room accommodations for him and his family as a part of his compensation and in lieu of a higher money salary, the fair market value of which was $ 600. Petitioner maintained a mailing address and, for business reasons, paid part of the telephone bill at his mother-in-law's apartment in Milwaukee. He incurred some expenses for formal clothing and accessories and the maintenance thereof for business purposes only, and similarly incurred some expense for entertainment. Held, that petitioner, while away from Milwaukee in the course of his employment, was not away from home in the pursuit of his trade or business within the meaning of section 23 (a) (1) (A) of the Internal Revenue Code of 1939, and his traveling expenses are not deductible thereunder. Also, held, that his expenditures for formal clothing and accessories and the maintenance thereof, and for entertainment in the course of his employment are deductible under section 23 (a) (1) (A). Held, further, that during 1947 the fair market value of the hotel accommodations furnished petitioner and his family by his employers constituted taxable income.

Eugene Gressman, Esq., for the petitioner.

George T. Donoghue, Jr., Esq., for the respondent.

Turner, Judge.

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TURNER

The respondent determined deficiencies in income tax against petitioner for the years 1947, 1948, and 1949 in the respective amounts of $ 685.34, $ 761.98, and $ 678.03. The questions are (1) whether certain expenditures by petitioner in the said years were traveling expenses while away from home in the pursuit of his trade or business, within the meaning of section 23 (a) (1) (A) of the Internal Revenue Code of 1939, and are therefore deductible from gross income, (2) whether certain other expenditures constituted ordinary and necessary expenses in the carrying on of his trade or business, within the meaning of the same section, and (3) whether the fair market value of hotel accommodations furnished petitioner and his family by his employer or employers in 1947 was additional compensation, and therefore income.

FINDINGS OF FACT.

For the years 1947 and 1949 petitioner filed separate income tax returns, and for 1948, with his wife, a joint income tax return, all with the collector of internal revenue for Wisconsin. The address shown on the 1947 return was "546 N. 15th St., Apt. 210, Milwaukee, Wis., c/o Mrs. Ruth Holle." It was the same on the 1948 return, except that the words "c/o Mrs. Ruth Holle" were omitted. The address shown on the 1949 return was "1810 W. Wis. Ave., #210, Milwaukee, Wisconsin."

Petitioner is a professional musician and during the taxable years herein he worked as such. He performed as a soloist on a piano or solovox in hotel dining rooms and cocktail lounges. His engagements during 1947, 1948, and 1949 were as follows:

Hotel Duluth, Duluth, Minn	Dec. 19, 1946, to Sept. 1947
Hotel Wausau, Wausau, Wis	Sept. 1947 to Apr. 1, 1948
Pickwick Tavern, Virginia, Minn	5 weeks
Miami Hotel, Dayton, Ohio	May 27, 1948, to July 30, 1948
Hotel Duluth, Duluth, Minn	Aug. 1, 1948, to Sept. 28, 1948
Club Carnival, Minneapolis, Minn	Sept. 29, 1948, to Dec. 18, 1948
Andrews Hotel Bar, Minneapolis, Minn	Dec. 19, 1948, to middle of Jan. 1949
Jean's Bar, Waukesha, Wis	3 weeks
Plankinton Red Room, Milwaukee, Wis	6 or 7 weeks
Hotel Duluth, Duluth, Minn	June 1 or 10, 1949, to Sept. 30, 1949
Hotel Retlaw, Fond du Lac, Wis	4 weeks
Hotel Wisconsin, Milwaukee, Wis	7 or 8 weeks

A number of the above engagements were with hotels in the Schroeder hotel chain, some of which were the Hotels Duluth, Wausau, and Retlaw. The headquarters of the Schroeder chain was in Milwaukee, and petitioner usually negotiated his contracts there, but on one or more occasions, he arranged engagements over long distance telephone or by telegraph. Petitioner had played other Schroeder hotels prior to the years herein.

Petitioner was a member of the Milwaukee Local No. 8 of the American Federation of Musicians, and had been since 1934. In accordance with the rules of the federation, he obtained a travel card from that local for presentation to the secretaries of the locals having jurisdiction in the various localities in which he played engagements. At the end of 6 months of an engagement in Duluth, he was admitted to membership in the local at Duluth. In 1947, he paid union dues in Milwaukee, Duluth, Fond du Lac, and Wausau. *53 Petitioner's family, during the taxable years, consisted of himself, his wife, and one child. They lived, and had their place of abode, wherever the petitioner happened to be employed at the particular time, usually in the same hotel where he was working.

The petitioner was born and reared in Milwaukee. His parents, his wife, and his child were also natives of Milwaukee. He was registered as a voter in Milwaukee and voted there by absentee ballot in 1948. He procured the license for the operation of his automobile from the proper authorities in Milwaukee, and the address given for that purpose was 546 North 15th Street, Milwaukee. He filed State income tax returns with the State of Wisconsin, and on the return so filed for 1948, he gave 546 North 15th Street, Milwaukee, as his "Mail Address," but listed Marathon, the county in which Wausau is located, as the county in which he had resided in 1947.

Mrs. Ruth Holle was petitioner's mother-in-law. At the time of petitioner's marriage to her daughter, in 1941, and up to some undisclosed date, either in late 1943 or early 1944, Mrs. Holle and her husband lived in an apartment at 908 or 910 West Center Street, Milwaukee. The Holles occupied a second floor apartment, and for some indeterminate period, 3 In the interim, the Holles, after procuring an unfurnished apartment at the last stated address, had been divorced. The apartment consisted of a fairly large living room, with an in-a-door bed, a pullman kitchen, a dining room, and bath. In the living room there was also a Simmons hide-a-bed, which was screened off when used for sleeping. Mrs. Holle occupied this apartment continuously until 1950.

Petitioner and his family would stay at his mother-in-law's between some of his engagements, and at times, on his day off, they would drive to Milwaukee. Monday was usually his day off, and on some engagements he would have no performances from Sunday night until Tuesday night. Petitioner paid no part of the rent on the apartment, but would make some payment of household expenses when he and his family were at the apartment. Some of his personal possessions, including some of his music, were left at the apartment, but the apartment was too small to hold all such possessions of either petitioner or his mother-in-law, and jointly they rented storage space in a Milwaukee warehouse, where they stored surplus belongings. Among other things so stored by petitioner, would be wardrobe trunks containing off-season clothing.

In promoting his engagements, petitioner used printed brochures and other advertising material. The brochures were made up in lots of 2,000 to 3,000 copies. Such material carried the Milwaukee address, "546 North 15th Street, c/o Mrs. F. Holle." Much, if not most, of petitioner's correspondence was carried on by petitioner, with the assistance of his wife, from their hotel room at the place where petitioner happened to be working. Mail addressed to petitioner at the Milwaukee address would be received by Mrs. Holle and she would place such mail in an envelope or package and send it on to petitioner. Petitioner anticipated there would be some responses or inquiries by telephone, and to that end, he contributed $ 5 a month toward the payment of the apartment telephone bill.

On the two occasions during the taxable years, both in 1949, when petitioner did have employment in Milwaukee, he and his family did not live with Mrs. Holle at the 546 North 15th Street address, but resided elsewhere. The first of these engagements was at the Plankinton Red Room, and during the filling of that engagement and for some weeks thereafter, 11 weeks in all, petitioner and his family resided at the Abbot Crest Hotel, paying a rental of $ 17.50 per week. Later in the year, after engagements in Duluth and Fond du Lac, petitioner returned to Milwaukee for a 7 or 8 weeks' engagement at the Hotel Wisconsin, and during that engagement and for a period of 17 weeks, he and his family lived at the Stratford Hotel, paying $ 30 per week.

In 1947, and as a part of the compensation for the services rendered by the petitioner, the Hotels Duluth and Wausau furnished hotel room accommodations for petitioner, his wife, and child, in lieu of a higher money salary. The fair market value of the accommodations so furnished was $ 600.

Petitioner usually wore formal clothes, either tuxedos or full dress, when playing night engagements. If he played during the daytime, and sometimes the terms of his employment required that he play at the noon hour, he wore business suits or sportswear. For his performances, petitioner in general dressed in a manner which might reasonably be expected of him, taking into account the type of his work and the character of his places of employment. Petitioner's formal clothing was bought and used for business purposes only.

In December 1946, petitioner bought a new automobile for $ 2,150. He used the automobile during the taxable years herein for driving himself and his family to his various engagements. At times, on his days off, he would use the car in making trips to contact prospective employers. The car was also used for pleasure and family purposes. When he was employed within a radius of 150 miles of Milwaukee, he would at times spend his offday in Milwaukee. Petitioner was the only one who ever drove the automobile. No use of the automobile was made or required in his employment or performances.

Petitioner, on his 1947 return, reported income from salary or wages of $ 6,291.67, deductions of $ 4,020.93, net income of $ 2,270.04, and income tax in the amount of $ 70.82. In his determination of the deficiency, the respondent disallowed the deductions claimed under the headings of meal expense, laundry, entertainment and tips, storage and shipping, automobile expense, and clothing, totaling $ 3,226.03. The amount claimed for laundry was $ 286.50, for entertainment and tips, $ 330.50, and for clothing, $ 452.85. The clothing was described as 1 tuxedo, 2 sport jackets, slacks, 2 business suits, 3 formal shirts, 11 shirts, 4 sport shirts, for a total of $ 267.50; collars, shoes, socks, handkerchiefs, etc., for a total of $ 164.35; clothing repairs and alteration, for a total of $ 21. The respondent allowed the deductions, amounting to $ 749.90, claimed under the headings of music arrangements; office supplies, Christmas cards, brochures, etc.; postage; telephone and telegraph; piano repairs and music supplies; miscellaneous travel expense; union dues; and various union charges.

For the year 1948, the petitioner reported his income as wages, in the amount of $ 7,900; deductions, $ 5,631.84; net income, $ 2,268.16; and income tax of $ 77.72. In his determination of the deficiency, the respondent disallowed $ 4,439.37 of the deductions claimed. The amount disallowed purportedly represented automobile expense, $ 1,123.84; hotel expense, $ 793.15; food, $ 1,368.75; entertainment, $ 157; wardrobe replacement, including business suits, 2 tux slacks at $ 28.74, shoes, socks, sport shirt, belt, suspenders, shorts, ties, all totaling $ 218.84; dry cleaning and laundry, $ 338; shipping and storage charges, $ 273.79; and luggage replacement, $ 166. He allowed deductions claimed amounting to $ 1,192.47, which included contributions, union dues, commissions, etc., music supplies and instrument repairs, publicity, and telephone and telegraph.

For the year 1949, the petitioner reported as salary, $ 6,625; deductions, $ 4,150.12; net income, $ 2,464.88; and income tax in the amount of $ 69. The respondent in his determination of the deficiency made additions to net income for deductions disallowed and errors in addition and subtraction of $ 3,456.76. Deductions disallowed in full were meals expense, $ 812; hotel expense, $ 757.25; shipping and storage charges, $ 245.76; laundry and dry cleaning, $ 340.10; clothing, $ 72.75; automobile expense, $ 930.65; and business promotion, $ 246.50. He allowed the deductions claimed for telephone, telegrams, stationery, postage and supplies, music, and union dues, totaling $ 703.36. The detail with respect to the claimed deduction for laundry and dry cleaning was shown as laundry, $ 187.20, dry cleaning, $ 140.40, tailor, $ 22.50; and for clothing, "Formal Clothes and Accessories, job," $ 72.75.

For each of the years 1947, 1948, and 1949, the returns indicated that the amounts claimed as deductions under the heading of Automobile expense represented 75 per cent of the total amounts expended for automobile costs and repairs.

During the years 1947, 1948, and 1949, the petitioner spent the following amounts for the purposes indicated:

1947	$ 338.28	For repair, maintenance, and operation of the
		automobile.
1948	$ 183.38	For repair, maintenance, and operation of the
		automobile.
	691.40	For hotel rooms for petitioner, his wife, and child in
		hotels outside Milwaukee.
	88.55	For shipping charges.
1949	$ 296.87	For repair, maintenance, and operation of the
		automobile.
	304.50	For hotel rooms for petitioner, his wife, and child in
		hotels outside Milwaukee.
	201.28	For shipping and storage.
	94.38	For laundry and dry cleaning.

For the years 1947, 1948, and 1949, the petitioner acquired and used formal clothes, tuxedos or full dress, and the accessories therefor for business purposes only. In purchasing such clothes and accessories, petitioner in each of the taxable years expended $ 60. Similarly, in each such year, he expended for laundry and dry cleaning of such formal or full dress clothes and accessories the sum of $ 30.

In each of the taxable years 1947, 1948, and 1949, petitioner incurred some entertainment expenses, even though small, which were ordinary and necessary in his employment. The amount so expended was $ 25 for each such year.

OPINION.

It is the claim of the petitioner that, for the purposes of section 23 (a) (1) (A) of the Internal Revenue Code of 1939, *62 of formal clothing worn during his performances, and the laundry and cleaning costs thereof were likewise deductible as ordinary and necessary expenses incurred in the carrying on of his trade or business as a professional musician. He now waives any claim for the deduction of hotel and meals expense while working in Milwaukee in 1949 and for the deduction of the costs relating to clothing other than formal wear.

It is the position of the respondent that during 1947, 1948, and 1949 petitioner had no home, within the meaning of section 23 (a) (1) (A), from which he was traveling in the pursuit of his trade or business, but, for the purposes of that section, his home was wherever he happened to be employed and living at the particular time. As to the expenditures for the maintenance and operation of his automobile and for clothing, laundry and cleaning, and the like, it is respondent's position that they were personal expenses, which are not deductible, *225 $ 1,020; and that such fair market value of the accommodations so furnished constituted additional income to petitioner in that year.

That petitioner did not have or maintain his residence at 546 North 15th Street, in Milwaukee, during the taxable years, is, in our opinion, clearly established by the facts. He may have retained, and probably did retain, Milwaukee as his domicile, but that is not the question before us. He and his family lived, and had their home or place of abode, wherever petitioner happened to be working, and it is significant, we think, that when petitioner did return to Milwaukee in the pursuit of his trade or business as a professional musician, he and his family did not live or reside at the North 15th Street address, but established their residence elsewhere in the city. On the facts shown of record, and found herein, we conclude and hold that petitioner, while away from Milwaukee in the course of his employment during the taxable years, was not away from home in the pursuit of his trade or business within the meaning of section 23 (a) (1) (A). Commissioner v. Flowers, 326 U.S. 465">326 U.S. 465; Moses Mitnick, 13 T. C. 1; Walter M. Priddy, 43 B. T. A. 18; and Mort L. Bixler, 5 B. T. A. 1181.Charles G. Gustafson, 3 T. C. 998, cited and relied upon by petitioner, is not this case, but is distinguishable on the facts.

The facts do show, we think, that petitioner did incur some ordinary and necessary expenses within the meaning of section 23 (a) (1) (A) in the course of his employment. We are convinced that formal clothing was acquired and used by him solely during his performances, and that the amounts expended therefor and for the laundering and dry cleaning of such clothes are within the meaning of the statute. We have no satisfactory proof, however, as to the amount of such expenditures. Applying the rule in Cohan v. Commissioner, 39 F. 2d 540, we have found that the expenditures incurred for such formal clothing and accessories in each year were $ 60, and that the laundry and cleaning charges with respect thereto for each year amounted to $ 30. Similarly, we are convinced, and have found, that some of the expenditures deducted by petitioner under the heading of entertainment were ordinary and necessary in his employment. There is no evidence, however, which persuades us that the amount thereof was substantial. Applying the Cohan rule, we have found that he did expend $ 25 for such purposes in each of the taxable years. As to other items claimed as ordinary expenses and disallowed in the determination of deficiencies herein, the respondent is sustained.

By claim, affirmatively raised, the respondent contends that during the year 1947 petitioner, as a part of the compensation received by him for services rendered the Hotels Duluth and Wausau, was furnished hotel room accommodations for himself, his wife, and child, in lieu of a higher money salary. The proof of record amply sustains that contention, and we have so found. The respondent has not shown, however, the fair market value of the room accommodations so furnished by the two hotels. He asks for a finding of $ 1,020, applying a $ 20 rate for 51 weeks. It was petitioner's testimony that the rooms were supplied because the hotels had surplus space at the time. It is to be noted, also, that as late as 1949, petitioner was able to obtain room accommodations for himself and family in Milwaukee at $ 17.50 per week. Surely the respondent, who had the burden of proof in this connection, could have furnished the Court with evidence as to the going rate in 1947 for hotel accommodations such as were supplied petitioner by the two hotels. But, so far as appears, the respondent made no effort to obtain such evidence. Again applying the rule in Cohan v. Commissioner, supra, and bearing heavily against respondent, who had the burden of proof, we have found that the fair market value of the room accommodations received by petitioner from the Hotels Duluth and Wausau in 1947 for himself and family was $ 600.

Decision will be entered under Rule 50.

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Footnotes

• 1. The records show that petitioner rented an apartment at this address and moved there in 1950. Presumably, he was living there on May 15, 1950, when he filed his 1949 income tax return. This address is not shown to have been related in any way to his place of abode or activities in 1949, or any prior year.↩

• 2. This payment of dues in 1947 is, as stated by petitioner, in his 1947 return. His 1948 and 1949 returns did not show similar breakdowns as to the places where union dues were paid.↩

• 3. The extent of this occupancy is not at all clear. At one point, petitioner testified that he and his wife moved to the 908 or 910 West Center Street address in "forty-two or three," and at another point, his testimony indicates that, beginning in 1941, he and his family were in Milwaukee very little of the time, in that from 1941 up to 1947, his employment away from Milwaukee was comparable to that in 1947, 1948, and 1949.↩

• 4. SEC. 23. DEDUCTIONS FROM GROSS INCOME.

  In computing net income there shall be allowed as deductions:

  (a) Expenses. --

  (1) Trade or business expenses. --

  (A) In General. -- All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; * * *↩

• 5. SEC. 24. ITEMS NOT DEDUCTIBLE.

  (a) General Rule. -- In computing net income no deduction shall in any case be allowed in respect of --

  (1) Personal, living, or family expenses, * * *↩