Green v. Commissioner

35 T.C. 764, 1961 U.S. Tax Ct. LEXIS 224

• Court: United States Tax Court
• Decided: February 16, 1961
• Docket: Docket No. 77980
• Status: Published

Opinions

OPINION.

MuRdock, Judge:

The petitioners in their brief state that the Commissioner relies upon the facts that Jay had a Dayton telephone, a Dayton telephone listing, a Dayton telephone-answering service, and a Dayton address for answering mail. They apparently fail to realize that the burden is upon them to prove that J ay’s home for tax purposes was in Greenville rather than in Dayton. The Commissioner has denied the deductions claimed by the petitioners for travel expense upon the theory that J ay’s home for tax purposes was in Dayton. That determination is presumed to be correct and the burden to prove that it was erroneous is upon the petitioners. The telephone and mail receiving addresses are merely some evidence unfavorable to the petitioners, of which there is considerably more.

Not only is the Commissioner’s determination presumed to be correct, but the great preponderance of the evidence supports that determination. Most of the facts have been stipulated and J ay was the only witness. The parties have stipulated that J ay had no income from 'any client in Greenville during the taxable years, and there is no evidence to show that he ever was employed or had any income from business in Greenville. The evidence shows, furthermore, that all of his income for the taxable years was derived from services in Dayton. We cannot assume, in the absence of proof, that these years were not typical of his business activities. The only employment that he ever had as a consultant, so far as this record shows, was in Dayton, an industrial city much larger than Greenville.

The fact that Jay had an office in his residence in Greenville is far from being determinative. He could as well have had it in Dayton. Jay testified that he “Made out reports for clients, the recommendations of work proposed, or to be done, or done for clients, procedures, designed the forms, generator plant layouts, and the general paperwork involved in professional engineering” in Greenville, but he did not relate that statement to any work done during the taxable years. However, with respect to realigning machinery for Lau-Blower in 1954, lie testified, “Now, the plant layout and the majority of all the paper work was not done in Dayton. The leg work, the time studies, were done at the plant, as is normal; but the other work was all taken back to my office in Greenville.” The parties have stipulated that Jay remained overnight in Greenville at undisclosed times for not more than 50 nights in 1954 and was in Dayton for 300 nights. This, taken in connection with other evidence, leads the Court to doubt that he could have done very much, if any, of his work during the taxable years at his place in Greenville. But even if he did do some work there, certainly by far the largest part of the work which he did to earn income during these taxable years was done in Dayton, and all of it could have been done there without travel expense had he resided there. He may have worked only 1 month in 1955 yet was in Dayton 300 days.

Jay testified in explanation of the Dayton addresses which he used in his business, “Well, through analysis of our ethical way of contacting clients, I found that I got very few responses to Greenville, but that by having an answering service and a mail service where mail could reach me in a city like Dayton, I got a very much greater response, and contacts for my profession.” At another place he said he did it “for a prestige standpoint.”

The evidence as a whole implies that Jay’s only prospects of employment were in Dayton and that he, like his wife, chose to live in Green-ville for personal reasons only, while earning income in Dayton. Their work in Dayton does not give rise to business expenses under the circumstances shown in this record, even though Jay depended upon short-period employment. If the record does not prove affirmatively that Dayton was Jay’s home for tax purposes, nevertheless, the petitioners have failed to sustain their burden of proof that it was not.

Reviewed by the Court.

Decision will be entered for the respondent.