438 F2d 643 Chimento v. Commissioner of Internal Revenue

438 F.2d 643

71-1 USTC P 9224

Carmen CHIMENTO and Susan Chimento, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE.

No. 18490.

United States Court of Appeals, Third Circuit.

Submitted Jan. 14, 1971.
Decided Feb. 17, 1971, Rehearing Denied April 21, 1971.

Carmen and Susan Chimento, pro se.

Johnnie M. Walters, Meyer Rothwacks, Thomas L. Stapleton, Richard Halberstein, U.S. Dept. of Justice, Tax Division, Washington, D.C., for appellee.

Before SEITZ and VAN DUSEN, Circuit Judges, and MASTERSON, District judge.

OPINION OF THE COURT

PER CURIAM:

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1

Taxpayers1 appeal a decision of the Tax Court2 sustaining a deficiency asserted against them for the year 1965.

2

On his joint Federal income tax return for 1965, taxpayer deducted the cost of his meals and lodgings while in Binghamton, New York, as travel expenses incurred while 'away from home.' Section 162(a)(2), Internal Revenue Code of 1954. These deductions were disallowed by the Commissioner, whose determination was upheld by the Tax Court. The bases for the Tax Court's decision were the following findings: (a) since the taxpayer had no 'home' other than Binghamton during 1965, the expenses were not incurred while the taxpayer was 'away from home'; and (b) by 1965 at least, Binghamton had become his 'tax home' since his job there had become indefinite rather than temporary in nature.

3

After fully reviewing the record, we cannot say that the Tax Court's factual findings were 'clearly erroneous,' or that it erred in interpreting the applicatble law. Accordingly, the decision of the Tax Court will be affirmed.

1

Taxpayer's wife is a party to these proceedings solely because she had filed a joint return with the taxpayer

2

Chimento and Chimento, 52 T.C. 1067 (1969)