Construction Superintendent Cannot Deduct Long Commutes to Jobsites as Travel Expenses.

(Parker Tax Publishing April 22, 2015)

The Tax Court held that a construction superintendent who frequently commuted directly to job sites far from home could not deduct travel expenses because the sites were not temporary assignments and his tax home was within the area of his employment. Bartley v. Comm'r, T.C. Summary 2015-23.

Background

Lonnie Bartley worked as a construction superintendent for Far West Contractors Corp. Bartley's employment required him to regularly work at jobsites away from Far West's main office. For the most part, he would drive upwards of sixty miles to the jobsites directly from his residence. During his employment, Bartley primarily supervised jobsites in the Los Angeles metropolitan area, specifically in Redondo Beach and El Segundo, California. Occasionally, he would visit a site in Rancho Bernardo, California. Far West did not provide Bartley with a company vehicle or reimburse him for driving to work. Far West also required Bartley to provide his own personal protection equipment, including protective footwear.

On his 2010 Form 1040, Bartley attached a Form 2106-EZ, Unreimbursed Employee Business Expenses on which he claimed a deduction for commuting expenses of $24,448 and other business expenses of $2,482, including expenses for work boots and an overnight stay at a hotel near one of the jobsites. To substantiate the business expenses, he provided credit card statements with purported expenses highlighted, along with a daily commuting log claiming to total the number of miles driven each day. The IRS disallowed the deductions and determined a deficiency of $3,373.

Analysis

While commuting expenses are generally nondeductible, taxpayers may deduct transportation expenses incurred in going between a taxpayer's residence and a temporary work location outside the metropolitan area where the taxpayer normally lives and works. A work location is temporary if it is realistically expected to last (and does in fact last) for one year or less (Bogue v. Comm'r, T.C. Memo. 2011-164).

The Tax Court concluded the Redondo Beach and El Segundo sites were not temporary, as Bartley worked well over a year at each of them and there were no facts to suggest that the work at the two sites would end within a short time. The Tax Court rejected Bartley's argument that, given the large size of those sites, each site contained temporary sites that he would commute between.

The court also found Bartley's commuting log did not properly substantiate the number of miles he traveled to the Rancho Bernardo site. The court questioned the reliability of the information recorded in the commuting log, and whether the log was created contemporaneously given that the entries appeared to have been written all at once with the same pen and included several mistakes.

Although Bartley did not claim a deduction for traveling expenses, the Court characterized his hotel expense as an attempt to deduct a travel expense. The court noted a travel expense is a deductible under Code Sec. 162(a) if the expense was (1) incurred away from home, (2) reasonable and necessary, and (3) incurred in pursuit of a trade or business (Strohmaier v. Comm'r, 1 13 T.C. 106 (1999)).

The court determined Bartley properly substantiated the expense, but it was not incurred "away from home," as his tax home for purposes of Code Sec. 162(a) was the entire Los Angeles metropolitan area and the hotel was located within that region. The Court reasoned Bartley was not required by the exigencies of his business to incur the hotel expense as it was his own decision to live far away from where he worked.

In evaluating the other claimed business expenses, the court found Bartley could deduct the cost of his work boots as work boots were essential to his labor intensive employment in the construction industry, were not suitable for general or personal wear, and were properly substantiated by a receipt and a credit card statement. However, the court ruled Bartley failed to substantiate the other expenses, as he never explained how the other purchases highlighted on his statements related to his business, and some of his reported business expenses appeared to be for personal "cash-back" withdrawals associated with using a credit card to purchase items at Home Depot.

For a discussion of commuting expenses and related deductions, see Parker ¶ 91,110 (Staff Editor Parker Tax Publishing)

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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