115 T.C. 210 (T.C. 2000), 5114-98, Johnson v. Commissioner of Internal Revenue
|Citation:||115 T.C. 210, 115 T.C. No. 16|
|Opinion Judge:||Laro, David, Judge:|
|Party Name:||MARIN I. AND ANITA J. JOHNSON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent|
|Attorney:||Steven R. Stolar and Kristina S. Keller, for petitioners. Ric D. Hulshoff, for respondent.|
|Case Date:||September 15, 2000|
|Court:||United States Tax Court|
Decision will be entered under Rule 155.
P is a merchant seaman who captains a vessel that sails worldwide carrying equipment of the U.S. military. The vessel sails infrequently in the general vicinity of P's residence, which also is not near the office of P's employer. P's employer furnishes him with lodging and meals without charge while he works on the vessel, but P pays for his other (incidental) travel expenses. P reported his incidental travel expenses as miscellaneous itemized deductions for 1994 and 1996, ascertaining the amounts of those deductions by using the full Federal per diem rates for meal and incidental expense (M&IE rates). The M&IE rates are referenced in Rev. Proc. 96-28, 1996-1 C.B. 686, and its progenitors, which provide that an employee, in lieu of substantiating his or her actual travel expenses, may use the M&IE rates to compute the cost of meal and incidental expenses paid while working away from home. See, e.g., id. sec. 4.03, 1996-1 C.B. at 688. P has no receipts for his incidental travel expenses.
Held: P's tax home is the situs of his residence. Held, further, P's testimony, by itself, supports a finding that P paid incidental travel expenses while employed away from his tax home.
Held, further, P's use of the M&IE rates is limited to the portions thereof that are attributable to incidental expense.
Respondent determined deficiencies of $ 945 and $ 1,022 in petitioners' 1994 and 1996 Federal income taxes, respectively. The deficiencies stem from respondent's disallowance of $ 3,784 and $ 3,654 that Marin I. Johnson (petitioner) claimed for the respective years as miscellaneous itemized deductions for travel expenses connected to his employment as a merchant seaman. Petitioner ascertained the amount of those deductions by using the full Federal per diem rates for meal and incidental expense (M& IE rates) referenced in Rev. Proc. 96-28, 1996-1 C.B. 686, and its progenitors. See, e.g., id. sec. 4.03, 1996-1 C.B. at 688. Petitioner's actual expenses consisted solely of incidental expenses; while he was at work, his employer furnished him with lodging and meals at no charge.
We must decide whether petitioner may deduct the claimed amounts. We hold he may not. We hold that petitioner's use of the M& IE rates is limited to the incidental expense portions of those rates and that his deductions must be determined accordingly. Unless otherwise indicated, section references are to the Internal Revenue Code, and Rule references are to the Tax Court Rules of Practice and Procedure.
FINDINGS OF FACT
Most facts were stipulated. The parties' stipulations of fact and the exhibits submitted therewith are incorporated herein by this reference. The stipulations of fact are found accordingly. Petitioners resided in Freeland, Washington (Freeland), when we filed their petition. Freeland is a community on Whidbey Island, Washington, located in the Puget Sound approximately 70 miles east of Port Angeles, Washington, and approximately 75 miles north of Tacoma, Washington. 
Petitioners are husband and wife. They and their daughter resided during the subject years in a house (personal residence) that petitioners owned in Freeland. During 1994, petitioner paid $ 12,640 of mortgage interest and $ 4,412 of real estate taxes on the personal residence. He paid $ 11,002 of mortgage interest and $ 4,799 of real estate taxes on the personal residence during 1996.
Petitioners' primary source of income is petitioner's wages from Crowley American Transport, Inc. (Crowley), the primary office of which is in Jacksonville, Florida, and from the American Maritime Officers Vacation Plan.  Crowley employs petitioner as the captain of its vessel the M/V American Falcon (Falcon). Crowley primarily charters the Falcon to the U.S. military to transport military vehicles and other military equipment worldwide. Petitioner's work requires that he work continuously on or around the Falcon for long periods of time and that he then vacation for approximately 2 months. Petitioner and his crew generally fly to and from
the situs of the Falcon at the beginning and end of their work schedule.
During 1994, petitioner worked from April 22 to July 10 and from September 7 to December 8, for a total of 173 days. During 1996, petitioner worked from January 1 to February 3 and from June 26 to December 13, for a total of 205 days. Petitioner's duties included captaining the sailing of the Falcon from one city to another and performing any assignment required by his employer while the Falcon was docked at port.
Petitioner sailed the Falcon to and from the cities set forth in the schedule below.  The Falcon was generally at sea between each departure and immediately following arrival date set forth in the schedule, and the Falcon was generally at port on and between each arrival and immediately following departure date.
|Apr. 22||Joined||Gulfport, Miss., U.S.A.|
|Apr. 22||Departed||Gulfport, Miss., U.S.A.|
|Apr. 26||Arrived||Bayonne, N.J., U.S.A.|
|Apr. 27||Departed||Bayonne, N.J., U.S.A.|
|May 6||Arrived||Rotterdam, The Neth.|
|May 9||Departed||Rotterdam, The Neth.|
|May 19||Arrived||Bayonne, N.J., U.S.A.|
|May 21||Departed||Bayonne, N.J., U.S.A.|
|May 23||Arrived||Jacksonville, Fla., U.S.A.|
|May 24||Departed||Jacksonville, Fla., U.S.A.|
|June 5||Arrived||Hommelvik, Nor.|
|June 7||Departed||Hommelvik, Nor.|
|June 10||Arrived||Rotterdam, The Neth.|
|June 11||Departed||Rotterdam, The Neth.|
|June 19||Arrived||Bayonne, N.J., U.S.A.|
|June 20||Departed||Bayonne, N.J., U.S.A.|
|June 29||Arrived||Rotterdam, The Neth.|
|June 29||Departed||Rotterdam, The Neth.|
|June 30||Arrived||Bremerhaven, F.R.G.|
|July 1||Departed||Bremerhaven, F.R.G.|
|July 10||Arrived |
|July 10||Left |
|Jan. 1||Joined||Dubai, U.A.E.|
|Jan. 7||Departed||Dubai, U.A.E.|
|Jan. 14||Arrived||Port Suez, Egypt|
|Jan. 15||Departed||Port Suez, Egypt|
|Jan. 16||Arrived||Ashdod, Isr.|
|Jan. 17||Departed||Ashdod, Isr.|
|Jan. 21||Arrived||Gibraltar, Gib.|
|Jan. 23||Departed||Gibraltar, Gib.|
|Feb. 2||Arrived||Wilmington, N.C., U.S.A.|
|Feb. 3||Left||Wilmington, N.C., U.S.A.|
|June 26||Joined||Aqaba Port, Jordan|
|June 28||Departed||Aqaba Port, Jordan|
|June 28||Arrived||Port Suez, Egypt|
|June 29||Departed||Port Suez, Egypt|
|June 30||Arrived||Iskendren, Turk.|
|July 2||Departed||Iskendren, Turk.|
|July 3||Arrived||Port Said, Egypt|
|July 5||Departed||Port Said Egypt|
|July 6||Arrived||Aqaba Port, Jordan|
|July 8||Departed||Aqaba Port, Jordan|
|July 13||Arrived||Raysut, Oman|
|July 14||Departed||Raysut, Oman|
|July 18||Arrived||Port Suez, Egypt|
|July 19||Departed||Port Suez, Egypt|
|July 28||Arrived||Bremerhaven, F.R.G.|
|July 30||Departed||Bremerhaven, F.R.G.|
|Aug. 2||Arrived||Muuga, Est.|
|Aug. 3||Departed||Muuga, Est.|
|Aug. 3||Arrived||Riga, Russ.|
|Aug. 4||Departed||Riga, Russ.|
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