OpenJurist

660 F2d 415 Merlino v. Commissioner of Internal Revenue

660 F.2d 415

81-2 USTC P 9755

Ernest L. MERLINO and Lieselotte M. Merlino, Appellants,
v.
COMMISSIONER OF INTERNAL REVENUE, Appellee.

No. 80-7591.

United States Court of Appeals,
Ninth Circuit.

Submitted Oct. 8, 1981.
Decided Oct. 30, 1981.

Ernest & Lieselotte Merlino, pro se.

John F. Murray, Acting Asst. Atty. Gen., Washington, D.C., for appellee.

Appeal from the United States Tax Court.

Before BROWNING and WRIGHT, Circuit Judges, and WEIGEL,* District Judge.

PER CURIAM.

1

The Merlinos claimed a moving expense deduction of $2,901 after retiring and returning to Seattle from Germany. Because they lived in an apartment awaiting completion of a new home, Mr. Merlino did not work for at least 39 weeks in the 12-month period following their arrival. The Commissioner concluded that I.R.C. § 217(c)(2) prohibited the moving expense deduction and assessed a deficiency. The Tax Court upheld the Commissioner's ruling.

2

On appeal, the appellants renew their arguments to the Tax Court: (1) the 12month, 39-week work requirement should not have begun to run until they had moved into their new residence, at which time Mr. Merlino's self-employment would have satisfied the work requirement; (2) because Mr. Merlino was a civilian employee of the military before retirement, the I.R.C. § 217(g) provision exempting members of the Armed Forces from the work requirement should apply; and, (3) section 217(i), which allows a deduction for moving expenses incurred by a retiree who worked abroad and upon retirement returns to the United States, should apply retroactively to them.

3

We do not overturn a Tax Court decision absent a clear mistake of law. Cruttenden v. Commissioner, 644 F.2d 1368, 1374 (9th Cir. 1981). The taxpayer carries the burden of showing that he comes within the provisions of a specific deduction. New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348 (1934).

4

Section 1.217-2(b)(4) of the Treasury Regulations answers the first argument. It defines the date of arrival as the day the taxpayer secures even temporary lodging at the new place of residence.

5

This regulation is entitled to respect and will not be overturned unless unreasonable and plainly inconsistent with the statute. Lindemood v. Commissioner, 566 F.2d 646, 649 (9th Cir. 1977); Rohde v. United States, 415 F.2d 695, 698 (9th Cir. 1969). The regulation is reasonable and consistent with the statute.

6

The military exception of I.R.C. § 217(g) applies only to military personnel on active duty and not to civilian employees. See H.R. Rep. No. 94-658, 94th Cong., 2d Sess. 156, reprinted in (1976) U.S. Code Cong. & Ad. News 2897, 3049.

7

Section 217(i) is prospective only. Equitable considerations are inapplicable. See Commissioner v. Dodd, 410 F.2d 132, 134 (5th Cir. 1959).

8

The Merlinos have not shown that they meet the requirements for claiming the moving expense deduction.

9

AFFIRMED.

*

Of the Northern District of California