McBreen v. Commissioner

Walter and Flora McBreen v. Commissioner.

McBreen v. Commissioner

Docket Nos. 40103, 40104.

United States Tax Court

T.C. Memo 1954-42; 1954 Tax Ct. Memo LEXIS 204; 13 T.C.M. (CCH) 473; T.C.M. (RIA) 54148;

May 17, 1954, Filed

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Walter McBreen, Fairplay, Mo., pro se. Frank C. Conley, Esq., for the respondent.

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WITHEY

Memorandum Findings of Fact and Opinion

WITHEY, Judge: The respondent has determined deficiencies in the income tax of the petitioners as follows:

Docket No.	Year	Amount
40103	1949	$199.14
40104	1948	225.44

The only issue is the correctness of the respondent's action in determining that Walter McBreen was not entitled to a deduction for meals and lodging while away from home in pursuit of a trade or business.

Findings of Fact

The petitioners, husband and wife, filed their joint income tax returns for the years 1948 and 1949 with the collector of internal revenue for the sixth district of Missouri.

On May 1, 1941, Walter McBreen, hereinafter referred to as the petitioner, purchased a five-room house and 35 acres of land at Fairplay, Missouri. Flora McBreen lived in the house during the taxable years.

Petitioner has been a pipe fitter for 33 years. He works on different construction projects in various locations. Some of the jobs he worked on prior to 1948 were located at Oak Ridge, Tennessee; Memphis, Tennessee; Denver, Colorado; Colorado Springs, Colorado; and Salt Lake City, Utah. Prior to the purchase of the house at Fairplay, Missouri, the petitioner traveled from job to job and had lived in Denver and Chicago.

In 1948 petitioner contacted the Pipe Fitters Association Local No. 533 in Kansas City, Missouri, and through the Union secured employment with the Dravo Corporation as a superintendent pipe fitter on the Sunshine Biscuit Company's new building being constructed at Fairfax, Kansas.

While working on the Sunshine Biscuit project, petitioner resided in Kansas City, Missouri, in a hotel and later rented a room in a private home by the week. He ate his meals in a restaurant. He was not reimbursed by the employer for his living expenses. Petitioner worked on the Sunshine Biscuit building for 52 weeks in 1948 and for the first 42 weeks of 1949.

In his income tax returns for 1948 and 1949, petitioner claimed as a deduction from wages received the following expenses:

1948
Room - $7.00 per week for 52 weeks	$ 364.00
Meals - $4.00 per day - $20.00 per
week	1,040.00
Total	$1,404.00
1949
Room - $7.00 per week for 42 weeks	$ 294.00
Meals - $20.00 per week for 42 weeks	840.00
Total	$1,134.00

The respondent disallowed the deduction.

Petitioner's home, within the meaning of section 23(a)(1)(A) of the Internal Revenue Code, was in Kansas City, Missouri, the place of petitioner's employment.

Opinion

The petitioners have not submitted any briefs in this proceeding. We gather from petitioner's testimony that since he maintained a home in Fairplay, Missouri, he contends he is entitled to a deduction for travel expenses, meals and lodging while working away from home overnight.

Based on our Findings of Fact, the issue is controlled by Commissioner v. Flowers, 326 U.S. 465">326 U.S. 465; Michael J. Carroll, 20 T.C. 382">20 T.C. 382; Beatrice H. Albert, 13 T.C. 129">13 T.C. 129; Virginia Ruiz Carranza (Zuri), 11 T.C. 224">11 T.C. 224; and S. M. R. O'Hara, 6 T.C. 841">6 T.C. 841.

Decision will be entered for the respondent.