391 F2d 274 Scotten v. Commissioner of Internal Revenue

391 F.2d 274

68-1 USTC P 9257

Frank and Mary SCOTTEN, Petitioners,

No. 24689.

United States Court of Appeals Fifth Circuit.

March 7, 1968.

Towner Leeper, El Paso, Tex., for appellant.

Lester R. Uretz, Chief Counsel, IRS, Christopher J. Ray, Atty., IRS, Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Gilbert E. Andrews, on brief, Deene R. Goodlaw, Edward L. Rogers, Attys., Dept. of Justice, Washington, D.C., for appellee.

Before COLEMAN, AINSWORTH and DYER, Circuit Judges.


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Taxpayer,1 a travelling salesman and consultant, contending that his home was in El Paso, Texas,2 deducted the unreimbursed living espenses he incurred when not in El Paso as 'traveling expenses * * * while away from home in the pursuit of a trade or business * * *.' under 26 U.S.C.A. 162(a)(2). The Tax Court found that under the facts and circumstances of this case, taxpayer had no 'home' within the meaning of section 162(a)(2), and that he could not, therefore, deduct his unreimbursed living expenses. The record plainly shows that taxpayer was an itinerant during the years in question, and as such he is not entitled to the deduction under section 162(a)(2). James v. United States, 9 Cir. 1962, 308 F.2d 204; Whitman v. United States, W.D.La.1965, 248 F.Supp. 845.




Frank Scotten's wife, Mary, is a party to this action only because she filed joint income tax returns with her husband during the years in question


Taxpayer alternatively contended that his home was in Chicage, the location of his employer's headquarters