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Jon R. Pollei and Carol J. Pollei, Petitioners v. Commissioner of Internal Revenue, Respondent; Harry W. Patrick and Renee L. Patrick, Petitioners v. Commissioner of Internal Revenue, RespondentPollei v. CommissionerDocket Nos. 28737-84, 28738-84October 28, 1986, Filed
United States Tax Court *31
Decisions will be entered for the respondent .Ps are police captains who receive a car allowance to operate specially equipped, personally owned vehicles in the performance as employees. Ps have deducted expenses of operation "against" the allowance. R has only questioned the portion of the deductions which are attributable to travel between police headquarters and Ps' homes. Ps have attempted to distinquish their case from others where we have found travel to be commuting by pointing out the requirement to be in contact with headquarters by radios. R contends that Ps must be in radio contact during any use of the specially equipped vehicle whether business or personal.
Held , the portion of Ps' travel between headquarters and house is nondeductible commuting even though Ps may have to call in and respond to their radios during their travel.Steven D. Woodland Ronald J. Gardner Gerber,Judge .GERBER*870 Respondent determined 1981 Federal income tax deficiencies of $ 537.30 for petitioners Pollei and $ 442 for petitioners Patrick and their cases have been consolidated for purposes of trial, briefing, and opinion. The sole issue for our consideration is whether police officers are entitled to deduct the cost of operating an unmarked police department equipped vehicle between their residence and police headquarters.
FINDINGS OF FACT
All petitioners resided in Salt Lake City, Utah, at the time each of the petitions was filed. Petitioners Jon R. Pollei (Pollei) and Harry W. Patrick (Patrick) were employed, during 1981, as captains in the Salt Lake City Police Department (SLCPD). During 1981, Pollei and Patrick commanded the detective and community affairs divisions, respectively. Police departments generally provide command officers (including captains) with police vehicles to assist in the performance*33 of their duties. Prior to 1980, SLCPD supplied Pollei and Patrick with city-owned unmarked vehicles for their full-time use.
Pursuant to a Salt Lake City mayor's September 23, 1980, executive order to reduce costs, SLCPD Chief Willoughby issued an order, dated September 29, 1980, requiring command level officers to provide their own transportation. *871 Their responsibilities and activity during travel to and from headquarters did not change when they converted from city-owned to privately owned vehicles. *34 Because the police officers did not receive additional remuneration, Chief Willoughby theorized that the city received more hours of police protection for the same cost.
In addition to calling in, each command officer possessed a paging device and could be reached at any time within the Salt Lake City area. Pollei and Patrick were required to call in at any time (whether on or off*35 duty) they used the unmarked, specially equipped vehicle. Command officers were not compensated for the time consumed traveling between their residences and headquarters at the beginning and end of each work day. Pollei and Patrick's compensated work day began at 8 a.m., at which time they were to arrive at headquarters for their 8-hour shifts. All command officers were subject to off-duty call-in. *36 privately owned vehicles used for police activity. Respondent disallowed only the portion that related to operation of the vehicle between headquarters and petitioners' residences each day. *872 by the police department. Respondent argues that petitioners' daily round-trip travel between their residences and headquarters is a nondeductible personal commuting expense.
Secs. 162 ,262 . *37 police services during the time he was traveling." The parties' position presents the wholly factual question of whether petitioners were commuting under the circumstances of this case.It is well established that expenses incurred in commuting from home to work are personal and not deductible.
Commissioner v. Flowers , 326 U.S. 465">326 U.S. 465United States v. Tauferner , 407 F.2d 243 (10th Cir. 1969)secs. 162 ,262 ;secs. 1.162-2(e) ,1.212-1(f) ,1.262-1(b)(5), Income Tax Regs. In order to be deductible, the travel "must be incurred in pursuit of business" and "necessary or appropriate to the * * * pursuit of business."Commissioner v. Flowers, supra at 467Gilberg v. Commissioner , 55 T.C. 611">55 T.C. 611Lopkoff v. Commissioner , T.C. Memo. 1982-701Fausner v. Commissioner , 55 T.C. 620 (1971)Wisconsin Psychiatric Services, Ltd. v. Commissioner , 76 T.C. 839">76 T.C. 839Fausner v. Commissioner , 413 U.S. 838">413 U.S. 838McCabe v. Commissioner , 688 F.2d 102">688 F.2d 10276 T.C. 876">76 T.C. 876 (1981);Chapman v. Commissioner , T.C. Memo. 1982-68Bradley v. Commissioner , T.C. Memo. 1973-163Marzano v. Commissioner , T.C. Memo. 1970-159Fiore v. Commissioner , T.C. Memo 1968-104">T.C. Memo. 1968-104Moss v. Commissioner , 80 T.C. 1073">80 T.C. 1073758 F.2d 211">758 F.2d 211 (7th Cir. 1985);Fred W. Amend Co. v. Commissioner , 55 T.C. 320">55 T.C. 320454 F.2d 399">454 F.2d 399 (7th Cir. 1971);Bakewell v. Commissioner , 23 T.C. 803">23 T.C. 803*41 Petitioners did not argue or prove that they incurred additional expense in driving to and from headquarters and their residences due to the requirement to call in or begin their "tour of duty."
Petitioners direct our attention to 1984 legislation and a temporary regulation concerning fringe benefits.
Section 132 , enacted as part of the Deficit Reduction Act of 1984, *874 Pub. L. 98-369, 98 Stat. 494, 665, excludes certain fringe benefits from gross income.Temporary Income Tax Regs. section 1.132-5T(h) ,50 Fed. Reg. 52304 (Dec. 23, 1985), excludes from gross income the value of the use of an unmarked law enforcement vehicle.Section 132 andTemporary Income Tax Regs. section 1.132-5T are effective only for taxable years after*42 the calendar year 1984. Petitioners' attempted analogy falls short for another reason. The excludability of a fringe benefit does not conversely reflect that the activity giving rise to the benefit would have been deductible if expended rather than received by the recipient. Indeed, the purpose or need to exclude "fringe benefits" from gross income is usually attributable to the fact that the recipient would not otherwise be entitled to an offsetting deduction.To reflect the foregoing,
Decisions will be entered for the respondent .Footnotes
1. It is unclear whether the order required petitioners to supply their own transportation to and from work only or for all purposes. Apparently, the SLCPD would have provided a city-owned vehicle during their 8-hour work day, but not to be taken home or used during off-duty hours.↩
2. The "on-duty call requirement" served a dual purpose. It was intended to place the officers in an earlier duty status providing additional patrol time and it placed privately owned vehicles under provisions of the city's self-insurance liability coverage. Apparently, the city was not liable unless the event occurred during the officer's "tour of duty."↩
3. Apparently, petitioners' official obligations were no greater when traveling to and from their residences and headquarters than traveling in pursuit of purely personal objectives, such as grocery shopping, sports events, etc. As a police officer, there is an unwritten commitment to provide public assistance whether it occurs on or off duty.↩
4. A $ 500 mathematical error Patrick made on his 1981 income tax return is not in dispute.↩
5. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954 as amended and in effect during the year in issue.↩
6. Petitioners' only position is that their travel between home and police headquarters was in performance of their jobs. No argument has been presented with respect to any of the other deductible categories of travel such as between jobs or while away from home.↩
7. We are mindful of the importance of police services and the dedication and commitment of police personnel. Our charge, however, is to interpret the effect upon petitioners' income tax liability, which does not necessarily comport with local practices or reflect upon the quality or characterization otherwise attributed to a particular activity.↩
8. Petitioners' allowance was a flat $ 250 monthly. It is conceivable that some of the allowance may have reimbursed purely personal travel.↩
Document Info
Docket Number： Docket Nos. 28737-84, 28738-84
Judges： Gerber
Filed Date： 10/28/1986
Precedential Status： Precedential
Modified Date： 11/14/2024