Sansone v. Comm'r of Internal Revenue

• Decision Date: 25 November 1963
• Docket Number: Docket No. 95301.
• Citation: 41 T.C. 277
• Parties: ARTHUR SANSONE AND RAYDA JO SANSONE, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

41 T.C. 277

ARTHUR SANSONE AND RAYDA JO SANSONE, PETITIONERS,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 95301.

Tax Court of the United States.

Filed November 25, 1963.

Arthur Sansone, pro se.

Frank E. Phillips, for the respondent.

In 1959, petitioner was regularly employed at Sycamore facility, a division of General Dynamics Corporation, located about 9 miles from the General Dynamics plant in San Diego City. He worked at Sycamore for 5 years. Because there is no public transportation, petitioner drove in his own car daily between his residence and Sycamore. Held: (1) Petitioner was transferred to Sycamore in 1956; it became his regular and only place of employment; he was not temporarily assigned to work there. (2) Petitioner's daily trips to work were in the nature of commuting between his home and place of employment, the unreimbursed expenses of which were not business expenses under section 162(a), 1954 Code, but were nondeductible personal expenses under the rule of Commissioner v. Flowers, 326 U.S. 465, 470.

HARRON, Judge:

Respondent determined a deficiency in income tax for 1959 in the amount of $252. The question is whether automobile expense in the amount of $1,260 is nondeductible personal expense, or business expense deductible under section 162(a), 1954 Code. Petitioner claims a deduction for the expense of driving daily between his residence and place of employment. Some of the facts have been stipulated.

FINDINGS OF FACT

The stipulated facts are so found and are incorporated herein by reference.

Petitioners filed a joint return with the district director of internal revenue in Los Angeles, Calif. Arthur Sansone is referred to hereinafter as the petitioner.

General Facts

Petitioner is now employed by General Dynamics Corporation. Since 1953, he has been employed continuously by Convair Corporation, which merged with General Dynamics, and by General Dynamics, except for a leave of absence of 9 months prior to 1955 when he was employed by the United States Air Force. The merger of Convair and General Dynamics took place in about September 1956. There was no break in petitioner's employment when the merger occurred. Petitioner is a technician in radio, radar, electronics, and telemetry. At all times material, his job classification was either research and development technician, or assistant foreman in supervisory work.

One of the questions in this case requires consideration of the distance between the respective locations of petitioner's residence and place of work in 1959; but it is also material to consider distances between the location of that place of work and other residential areas, in view of petitioner's contentions. The foregoing will serve to explain the following details about the distances between several places.

In August 1956, and before, petitioner's job was at the Convair plant located in the downtown part of the city of San Diego, near the Bay of San Diego. Beginning on August 16, 1956, and for 5 years thereafter until August 28, 1961, petitioner worked at the Sycamore facility of General Dynamics in Sycamore Canyon, which is in San Diego County north of and not far from the main part of the city of San Diego. Soon after the merger in September 1956 of Convair and General Dynamics, the latter corporation in about 1957 established its main plant in the northern part of San Diego City at 5001 Kearney Mesa Road (also referred to in the record as Kearney Villa Road) in the Kearney Mesa district, and it is known as the Kearney Mesa plant. Also, at some time after the merger, the Convair plant, downtown, was devoted primarily to the construction of airplanes and certain departments were moved to the uptown Kearney Mesa plant, such as the one in which petitioner had been employed before going to Sycamore. Petitioner did not work at the Kearney Mesa plant until February 1963. However, it is necessary to relate the location of the Sycamore facility to some point in San Diego City and since Sycamore facility was and is operated by General Dynamics, it is practical to consider the distance between Sycamore and the Kearney Mesa plant of General Dynamics.

The Kearney Mesa plant is located just east of Highway 395 (Cabrillo Freeway) and nine-tenths of 1 mile south of the intersection of Highway 395 and Clairemont Mesa Boulevard. It is located about 8 miles north of the Convair plant.

The Sycamore facility is reached by driving over Pomerado Road. In 1959, the entrance to Sycamore was on that road. Pomerado Road joins Highway 395, on the south, a short distance north of the intersection of Clairemont Mesa Boulevard and Highway 395, and, accordingly Pomerado Road is but a short distance north of the Kearney Mesa plant. The distance from the Kearney Mesa plant parking lot to the 1959 entrance to Sycamore facility, going north via Highway 395 and Pomerado Road, is 9.1 miles. Sycamore is roughly 17.1 miles from the Convair plant, north via Highway 395 and Pomerado Road; or between 17 and 20 miles, depending upon the approach from the downtown part of San Diego.

During 1956 until sometime in 1957, petitioner lived in Clairemont, a residential district within the city limits of San Diego. At sometime in 1957, he moved to the town of Pacific Beach, a few miles southwest of Clairemont, where he lived until April 1958, when he bought and moved to another residence located 10 miles north of the town of Escondido. He thereafter lived there with his family during 1959 and all times material. Escondido is 36 miles north of the center of San Diego City and 18.4 miles northwest of Sycamore.

While petitioner worked at the Convair plant, he drove in his own car to work each day from his residence in Clairemont, a distance of 12 or 13 miles. Beginning on August 16, 1956, when he went to work at Sycamore, he drove in his own car from Clairemont to Sycamore, a distance of either 11 or 12.3 miles from the center of the Clairemont district, via Clairemont Mesa Boulevard to Highway 395, and then over Pomerado Road to Sycamore. Later, when he moved to Pacific Beach, about 4 miles farther west, he drove to work each day from there to Sycamore, a distance of about 16.3 miles via the same roads. When he moved to the Escondido area, he drove from his home to his work at Sycamore, a distance of 28.4 miles to the entrance of the facility. He drove a few more miles within the area of the Sycamore facility to the particular test site where he worked. Test site 1 is 1.5 miles from the 1959 entrance; test site 2 is 2.1 miles from that entrance.

There is no public transportation to the Sycamore facility and General Dynamics neither provided transportation to the entrance nor paid the employees working there any extra amount to cover the costs of providing their own transportation between work and their homes. All of the employees at Sycamore, at one time as many as 600, drove to work from their respective residences in the general area of Sycamore. The Sycamore facility is not in a town; it is a restricted area on Government-owned property in the hills; all of the employees live in nearby towns.

Throughout 1959 petitioner worked as an assistant foreman in the Astronautics Division at Sycamore. He was employed at Sycamore continuously for 5 years, from August 16, 1956, to August 28, 1961, when he volunteered to work at offsite locations and received the first of such assignments in Omaha, Nebr. His work at Sycamore did not involve any traveling to any other place in the performance of his duties. Sycamore was his regular and only post of duty. His salary in 1959 was $9,385.

In his 1959 return, petitioner deducted $1,260 for the expense of driving between his home and Sycamore, computed as follows: He drove 30 miles, each way, or 60 miles during 234 working days; he used a cost of 9 cents a mile; the total mileage was 14,040 miles; $1,260 is a rounded-off figure for the total mileage multiplied by 9 cents a mile.

Respondent disallowed the deduction because it was not an ordinary and necessary business expense.

Sycamore Facility

In 1955, an area of 2.25 square miles up in the hills on the Camp Elliott Naval Reservation in West Sycamore Canyon, San Diego County, was selected for the Sycamore facility. The location satisfied Convair's requirement that it should be within 30 miles from the Convair plant in San Diego City. It is near sources of water and electric power, on Government-owned land, away from inhabited areas, 6 miles east of Highway 395, and about 5 miles northeast of Miramar. Convair began construction of buildings and test facilities in 1955; they were substantially completed by August 1956.

Sycamore is a facility for making on-the-ground, static, deactivated test firing of Atlas and Centaur missiles; no missiles are launched. Such tests are a middle operation between laboratory work and launching a missile into flight. At all times the work at Sycamore has consisted of preparing missiles for and making static test-firings. The facilities include a two-story administration building with offices, cafeteria, engineering services, medical and fire departments; a missile assembly building; a standard calibration laboratory; a maintenance ship; service towers; blockhouse control centers; ground equipment; fuel storage areas; and other facilities. There are now three test stands, two for testing Atlas and one for testing Centaur missiles. In 1959 there were two Atlas testing sites. Each test stand utilized an open-truss, steel tower 100 feet high; a concrete blockhouse, control center, fuel storage area, and other facilities. The test instrumentation system and deactivated launcher assembly units are similar to those used at Cape Canaveral. Atlas test stand 1 was completed in August 1956, and test stand 2 was completed in 1957. A Centaur test stand and tower were completed in 1960. Atlas test stands 1 and 2 are 2.5 or 3 miles apart. General Dynamics operates a scheduled bus service within...