Rogers v. Commissioner, Docket No. 13498-79.
| Decision Date | 30 September 1982 |
| Docket Number | Docket No. 13498-79. |
| Citation | 44 TCM (CCH) 1312,1982 TC Memo 578 |
| Parties | Patricia L. Rogers v. Commissioner. |
| Court | U.S. Tax Court |
Richard B. Sherman and Arthur Pelikow, for the petitioner. Julius A. Jove, for the respondent.
Memorandum Findings of Fact and Opinion
Respondent determined a deficiency of $384 in petitioner's Federal income tax for 1977. After concessions by the parties the sole issue remaining for our decision is whether petitioner is entitled to a home office deduction under section 280A,1 I.R.C. 1954.
Some of the facts have been stipulated and are so found. The stipulation of facts and exihibits attached thereto are incorporated herein by this reference.
Patricia L. Rogers (petitioner) resided in New York City, New York, at the time she filed her petition herein. Her federal income tax return for 1977 was filed with the Brookhaven Service Center at Holtsville, New York.
During taxable year 1977, petitioner was a concert bassoonist with the Metropolitan Opera Association, Inc. (hereinafter Met) at Lincoln Center, New York City. Petitioner joined the Met in December of 1976. Before joining the Met, she was a student and part-time professional musician for 6 years.
Petitioner, as a member of the Metropolitan Opera Orchestra2 was covered by the terms of union contracts between Local 802, American Federation of Musicians (of which petitioner was a member) and the Met. During 1977 she received compensation from the Met in the amount of $25,390.34. She was compensated by the Met for the following periods:
(a) three continuous pre-season rehearsal weeks;
(b) the regular New York season whose duration was for no less than 27 weeks;
(c) 49 tour days (of approximately 7 weeks). In addition to her compensation, petitioner was reimbursed $1,715 for per diem expenses;
(d) 2 weeks of performances in the New York City parks;
(e) 5 weeks' vacation; and
(f) 5 weeks' supplemental unemployment benefits.
During the pre-season rehearsal period, the musicians would rehearse twice a day. The first rehearsal would begin at 10:30 a.m. and end at 1:15 p.m. and the second would begin at 2:00 p.m. and end at 4:45 p.m. This rehearsal schedule continued for 3 weeks, 5 days a week.
During the New York season, petitioner was required to perform five operatic performances per week.3 The running time for each performance could vary from 1 hour and 36 minutes to 4 hours and 55 minutes. Almost all performances during the New York season began at 8 p.m. and, depending upon the opera, ended at around 11 p.m. Saturday performances began at about 2 p.m. There was no contractual requirement that the musicians arrive prior to the start of the performance. However most did so as to "warm up or tune up." Performances consumed 15 to 16 hours per week. All New York City performances (other than those in the parks) were at Lincoln Center.
In addition to performing, during the New York season the orchestra musicians were required to rehearse together as a unit. As a member of the wind section, petitioner was required to participate in these rehearsals at the Metropolitan Opera House at Lincoln Center approximately 10 or 11 hours per week. The orchestra rehearsals were either at a rehearsal room in C level or "in the pit", where performances took place. Thus, during the New York season a member of the wind section would spend approximately 26 hours per week at the Met facility at Lincoln Center playing and rehearsing. In addition, the three weeks of pre-season rehearsals, also at Lincoln Center, consumed about 27½ hours per week.
During the 49 tour days in 1977, the musicians generally did not rehearse together as a unit. While on tour, the orchestra performed at night only and during the day the musicians were free to spend their time as they wished.
Immediately following 2 weeks of performances in the park, the musicians received a 5-week vacation. During this period, the musicians were not obligated in any way to the Met and were again totally free to do as they wished, including accepting independent employment, without any effect on their compensation. This contrasted with the supplemental unemployment benefits period during which time if a musician worked independently, the supplemental unemployment benefits to be received as compensation would be reduced. During the taxable year 1977, petitioner toured with the Cincinnati Symphony Orchestra for 14 days and received compensation in the amount of $1,017.38 for her services.
As a professional musician, petitioner was required to practice numerous hours in order to maintain, refine, and perfect her skill. Petitioner practices the opera in current production as well as the one in preparation. She begins her individual practice with scales and warm-up exercises. She spends considerable time on difficult technical passages practicing those passages of the opera over and over. Practices at the Met were of the entire 93-piece orchestra, differing from a performance principally due to the absence of an audience. Petitioner's parts had to be perfected prior to a rehearsal or performance, since every error can be detected by her colleagues and her conductor. An error can distract other members of the orchestra, and has the potential to disrupt the entire orchestra.
The Metropolitan Opera House at Lincoln Center does not have private studios for practice on an individual basis by the 93 members of the orchestra. Neither did the Met otherwise provide to petitioner a facility for private practice. Orchestra employees were expected to practice individually off the premises, which practice was necessary as a practical matter in order for petitioner to carry out her obligations to the Met. Such off-premises practice, while a practical necessity for the orchestra employees, was not requested by the employer and was not a requirement or condition of employment. The musicians (including petitioner) were not required to report to the Met on their practice at home. By contrast, missing a rehearsal or a performance was investigated and usually would result in a loss of pay unless there was a legitimate reason for the absence.
During 1977 petitioner moved from one apartment to another. From January 1, 1977 to June 30, 1977, petitioner shared a two room apartment in New York City. Petitioner paid $150 of the $300 rent and allocated a portion of one of the rooms for her studio. The room was 20 feet by 12 feet of which an area of 8 feet 4 inches by 6 feet, 20 percent of the room, was used by petitioner exclusively as her studio.
For the balance of 1977, petitioner resided in a one room apartment located in New York City. The room had a total square footage of approximately 500 square feet of which 20 percent was used by petitioner exclusively as her studio.
The studios in both apartments were separate and distinct parts of larger rooms although there were no physical barriers separating one area from another. Only items relating to her music study and practice were placed in the area allocated exclusively for her trade or business and no social functions occurred there. The exclusive area or studio contained a desk,4 chair, cabinet, storage chest, lamp, two bookshelves, stereo, recording equipment, tapes, music tools, opera scores, books, music stand, bassoon, and bassoon stand.5
Her work in the studio included continuous practice of her musical skills, repair of her instruments, review of musical scores and rehearsal of her numerous operatic numbers. In addition to the numerous hours of practice required by any musician, petitioner's professional work included reed making, a very important aspect of successful bassoon playing. It would take petitioner between 2 and 3 hours to make a single reed and she made five or six per week. She kept all her reed making tools in her studio and completed all the work there. While in New York, petitioner worked in her studio approximately 30 hours per week.
Petitioner deducted $624 on her 1977 return for her home office, her studio. This amount was computed as follows:
6 months Office in Home
of rent (20 percent of rent)
First Apartment .......... $ 900 $180
Jan. 1, 1977 to
June 30, 1977
Second Apartment ......... 2,200 444
July 1, 1977 to
Dec. 31, 1977
______ ____
$3,100 $624
Opinion
Section 280A limits the deductions for expenses in the home for taxable years beginning after December 31, 1975.6 Section 280A provides generally that "no deduction * * * shall be allowed with respect to the use of a dwelling unit which is used by the taxpayers during the taxable year as a residence."7 Section 280A(c)(1), as recently amended, sets forth an exception to this general disallowance8 by providing that:
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