Gary M. and Trudy J. Weichlein - Page 12

                                       - 12 -12                                           

        deficiency or the pleadings and should not be considered by the               
        Court.  However, if the alternative issue is considered, petitioner           
        argues that respondent bears the burden of proof on this "new issue"          
        and has failed to carry that burden.                                          
             We begin by noting that determinations by the Commissioner               
        are presumed correct, and the taxpayer has the burden of proof to             
        overcome that presumption.  Rule 142(a).  The fact that the case is           
        fully stipulated does not change the burden of proof.  Borchers v.            
        Commissioner, 95 T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir.              
             Section 162(a)(2) allows taxpayers to deduct "the ordinary               
        and necessary expenses paid or incurred during the taxable year in            
        carrying on any trade or business, including * * * traveling                  
        expenses (including amounts expended for meals and lodging * * *)             
        while away from home in the pursuit of a trade or business".  The             
        Supreme Court has established a three-prong test for allowing                 
        deductions under section 162(a)(2).  The expense must be (1)                  
        reasonable and necessary, (2) incurred while away from home, and (3)          
        incurred in the pursuit of a trade or business.  Commissioner v.              
        Flowers, 326 U.S. 465, 470 (1946).                                            
             As a general rule, if a taxpayer is employed permanently or              
        for an indefinite time away from his usual abode, "home" for the              
        purposes of section 162(a)(2) means the vicinity of the taxpayer's            
        principal place of employment and not where his or her personal               

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011