Mathews v. Comm'r of Internal Revenue, Docket Nos. 58115

• Decision Date: 07 June 1961
• Docket Number: Docket Nos. 58115,60411.
• Parties: EDWARD MATHEWS AND CLYTIE MATHEWS, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Tax Court

36 T.C. 483

EDWARD MATHEWS AND CLYTIE MATHEWS, PETITIONERS,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket Nos. 58115

60411.

Tax Court of the United States.

Filed June 7, 1961.

Morris M. Grupp, Esq., for the petitioners.

Donald G. Daiker, Esq., for the respondent.

Petitioner was engaged as a choker setter in the logging business. Due to inadequate living accommodations at or near the logging locations and the absence of public or company transportation, petitioner used his automobile to make daily trips of 20 miles or more from his home where he resided with his family to the various jobsites. Held, the expenses incurred in traveling to the jobsites were nondeductible commuting expenses.

OPINION.

TIETJENS, Judge:

The Commissioner determined deficiencies in income tax of petitioners for the years 1951 and 1953 in the amounts of $181.94 and $255.63, respectively. The sole issue presented concerns traveling expenses claimed by petitioners. All of the facts are stipulated.

The petitioners are husband and wife who during the years 1951 and 1953 resided in Mendocino, California, and filed their returns with the director of internal revenue at San Francisco, California.

Edward Mathews, hereinafter referred to as petitioner, was employed as a choker setter in the logging business. A choker setter puts a chain around the felled trees so that the logs can be pulled to the landings behind a caterpillar tractor. Petitioner was not required to carry tools into the woods; however, in the course of his employment he was required to be present at various designated landings. Landings are loading areas in the woods within a logging location where the felled timber is taken to be loaded onto trucks. Logging locations are general areas where timber is cut. One location may include a number of landings.

There were no schools, stores, or places of residence available near the jobsites and the only mode of transportation to the locations was by private automobile which necessitated the use of both public and private roads.

In 1951 petitioner worked at 10 landings within one logging location. These landings were approximately 1,000 feet apart. He traveled approximately 20 to 22 miles daily from his home in Mendocino to the various jobsites, although he could have resided in Fort Bragg, a town with a population of approximately 4,000 people which would have been 11 miles closer to the jobsites.

In 1953 he was employed at some six to eight different locations in the woods ranging up to 16 miles apart, and at each of these locations the landing sites changed several times a month, and ranged from 1,000 feet to 1 mile apart. During 1953 Mendocino was the closer town and petitioner traveled approximately 25 to 28 miles daily from his residence to the logging locations.

The parties have stipulated that in lieu of claimed automobile depreciation of $840.15 and $925.50 for 1951 and 1953, respectively, the petitioner expended $936.15 and $935 in 1951 and 1953, respectively, traveling from his residence to his place of employment and return. It also has been agreed that the only issue here is whether petitioner may deduct the cost of traveling between his home and his place of employment in the woods.

‘(T)raveling expenses * * * while away from home in the pursuit of a trade or business' are deductible under section 23(a)(1)(A), I.R.C. 1939.

Except that the petitioner in this case transported no tools, the facts here are similar to those presented in Charles Crowther, 28 T.C. 1293 (1957). In that case the taxpayer was employed in cutting or sawing down timber at various ‘layouts.’ He resided with his family 40 miles or more from the layouts due to the unavailability of adequate living accommodations at the jobsites. There being no public transportation into the woods, the taxpayer used his own automobiles and jeep to make daily trips from his residence to the layouts and also to transport certain tools and equipment which he used in his work. In reaching our result that a portion of the amounts expended was a nondeductible commuting expense and that the portion which was attributable to transporting the tools and equipment was deductible as an ordinary and necessary business expense, this Court said, at page 1299, that—

It has long been established that commuting expenses, or expenses incurred in traveling from home to one's place of business or employment, are not deductible as business expenses. * * * The rule is the same regardless of the distance traveled between home and the place of business, * * * and regardless of any equitable consideration which makes the use of a particular mode of transportation necessary, * * *

The taxpayer in Crowther appealed and our decision was reversed by the Ninth Circuit, Crowther v. Commissioner, 269 F.2d 292, 298 (C.A. 9, 1959). In the course of its opinion the appellate court observed:

In this case, there was the necessity of traveling back and forth to the ‘layout’, although the necessity was caused not by the law, as in Emmert, (146 F.Supp. 322) but by the lack of living accommodations at the log sites and by the necessity of carrying tools back and forth to be repaired. Here, also, the work locations were temporary, there being seven of these locations in the two-year period. Here, also, the length of time of the work at the various locations was not determined by the taxpayer, but was determined by his employer, depending upon the amount of logs to be cut.

Here, also the taxpayer did not have a choice of living at the job-site or at his regular home as the petitioner did in Flowers, supra, (326 U.S. 465 (1946)) and in York, supra, (160 F.2d 385, (C.A.D.C. 1947)) and in Ney, supra. (171 F.2d 449 (C.A. 8, 1948).)

The contention of the respondent that the tax home of the taxpayer was at the seven different layouts in the woods, does not appear realistic to us. His residence in Fort Bragg was in a central location to all of the layouts; to some he had to go north, to others he had to go east, to others he had to go south from Fort Bragg.

The necessity of daily transporting his tools from his layout in the woods, to Fort Bragg, for the purpose of repair or replacement, appears important to us. This was a business necessity, rather than a personal necessity. Of course, he could not know what part or tool would break or when it would require repair or replacement. Whenever that happened, however, he was required to transport it by jeep or car for such repairs or replacement as might be necessary. His work stopped if this was not done.

We believe that the automobile and the jeep expenses in this case came within the language of Sec. 23.

Also see Rice v. Riddell, 179 F.Supp. 576; Carlson v. Wright, 181 F.Supp. 568.

While Crowther was on appeal this Court decided William L. Heuer, Jr., 32 T.C. 947 (1959), a case in which the taxpayer was a Mississippi River boat pilot. He received his assignments from a pilots' association and used his automobile to drive from his residence to points of assignment and return as well as between assignments. We held that to the extent the automobile expense represented amounts incurred in traveling from his residence to the points of assignment it was a nondeductible commuting expense, but that part which represented the cost of traveling between assignments was deductible. In Heuer we cited our holding in Crowther for the proposition that:

The courts have always recognized a distinction between expenses of traveling incurred in carrying on a trade or business and commuting expenses, that is, those incurred in going from one's residence to one's place of work and return. The latter have always been held to be nondeductible personal expenses, as distinguished from business expenses. * * * The rule is the same regardless of the distance traveled between the residence and the place of business, regardless of any equitable consideration which makes the use of a particular mode of transportation necessary, irrespective of whether or not public transportation is available, and irrespective of whether living accommodations are available to the taxpayer and his family at or near the place of business.

On appeal Heuer was affirmed by the Fifth Circuit in a per curiam decision. Heuer v. Commissioner, 283 F.2d 865 (C.A. 5, 1960).

In this case, as in Crowther and Heuer, we are confronted with the question of whether amounts expended in traveling from the taxpayer's residence to certain designated jobsites constitute ‘traveling expenses' incurred ‘while away from home in the pursuit of a trade or business' or nondeductible commuting expenses.

The Commissioner contends that petitioner's ‘tax home’ is the general area in the woods which is his permanent and primary place of employment and therefore he is not ‘away from home’ within the meaning of section 23(a)(1)(A).

Conversely, petitioner argues that Mendocino was his ‘tax home’ and that during all of 1951 and 1953 he was employed at minor and temporary sites of duty in the woods. He concludes that expenses incurred in traveling to these various temporary jobsites from his ‘tax home’ in Mendocino represent deductible traveling expenses.

Petitioner's contention in the case before us conforms with the view of the Court of Appeals in Crowther, that ‘the work locations were temporary, there being seven of these locations in the two-year period.’ With all due respect to the Ninth Circuit we cannot accede to the view that such work locations constitute severable jobs of a temporary character. As we see it, petitioner was permanently employed in a generally defined area. Although petitioner's jobsites were relocated periodically by his employer, we think that to treat each new location as a ‘temporary’ job ignores the nature of petitioner's work and fragmentizes without justification what we believe to be a continuous employment extending over an indefinite period. Similarly, in Heuer, this Court stated, at page 952,...