The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2018 Decided November 2, 2018
No. 17-1204
RICHARD LILJEBERG,
APPELLANT
v.
COMMISSIONER OF INTERNAL REVENUE SERVICE,
APPELLEE
Consolidated with 17-1205, 17-1207
On Appeal from the Decision
of the United States Tax Court
Leigh D. Roadman argued the cause for appellants. With
him on the briefs were Daniel T. Hartnett and Steven S. Brown.
Norah Bringer, Attorney, U.S. Department of Justice,
argued the cause for appellee. On the brief were Richard
Farber and Regina S. Moriarty, Attorneys. Travis A. Greaves,
Deputy Assistant Attorney General, entered an appearance.
Before: ROGERS and PILLARD, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This is an appeal from the
decision of the Tax Court denying a deduction on income
earned by three foreign nationals who participated in the State
Department’s Summer Work Travel Program in 2012. The
Internal Revenue Service denied appellants’ claimed tax
deduction for travel and living expenses incurred “while away
from home in the pursuit of a trade or business,” 26 U.S.C.
§ 162(a)(2). The Tax Court affirmed because appellants’ travel
and living expenses were not so incurred but arose from a
personal choice to participate in the Summer Work Travel
Program rather than the demands of their (temporary)
employers. We affirm.
I.
The State Department administers the Exchange Visitor
Program, which designates sponsors “to provide foreign
nationals with opportunities to participate in educational and
cultural programs in the United States and return home to share
their experiences.” 22 C.F.R. § 62.1(b) (2012); see Mutual
Educational and Cultural Exchange Act of 1961, Pub. L. No.
87-256, 75 Stat. 527 (codified as amended at 22 U.S.C.
§ 2452). One component of the Exchange Visitor Program is
the Summer Work Travel Program, which provides “foreign
students who are enrolled full-time and pursuing studies at
accredited post-secondary academic institutions . . . with the
opportunity to work and travel in the United States” for a
period of up to four months, during their summer vacations. 22
C.F.R. § 62.32(b), (c). Income earned is subject to federal
income taxes. 26 U.S.C. § 871(b)(1), (c). To participate in the
Summer Work Travel Program, a student must obtain a
nonimmigrant visa, known as a “J visa,” 22 C.F.R. § 62.1(b),
which, as relevant here, is issued to “an alien having a residence
3
in a foreign country which [the person] has no intention of
abandoning,” 8 U.S.C. § 1101(a)(15)(J).
Appellants are foreign nationals who participated in the
Summer Work Travel Program in the summer of 2012.
(1) Richard Liljeberg is a citizen of Finland who worked as a
lifeguard at Noah’s Ark in Wisconsin as part of the Program.
Liljeberg sought to deduct “$995 for airfare to and from the
United States, $500 for the cost of the program, $35 for the cost
of his J-1 Visa, and $170 for insurance.” Before participating
in the Program, he was a full-time university student in Finland,
where he lived with his mother and worked at a company called
ISS Security. Upon returning to Finland, Liljeberg “lived alone
in [a] rental home” and “did not return to work at ISS Security.”
(2) Anna Zolotareva is a citizen of Russia who “worked as a
housekeeper at the Roche Harbor Resort in San Juan Island,
Washington.” She sought to deduct $1,100 in travel expenses.
Before participating in the Program, Zolotareva was a full-time
university student in Russia, where she lived with her parents.
Upon her return to Russia, she lived with her parents. (3) Enda
Conway is a citizen of Ireland who “worked as a server at
Gosman’s Dock Restaurant in Montauk, New York.” He
sought to deduct $2,000 in travel expenses and $1,157 in meals
and entertainment expenses. Conway was a full-time
university student in Ireland in 2012 and “maintain[ed] his
home in Ireland” in 2012 by “pay[ing] his phone bill, gym
membership, and money to his mother.” Conway did not work
in Ireland in 2012.
The Internal Revenue Service (“IRS”) issued notices of
deficiency to appellants for their 2012 federal income taxes,
reflecting denials of the claimed deductions under 26 U.S.C.
§ 162(a)(2) for travel and living expenses incurred as a result
of their participation in the Summer Work Travel Program.
Appellants petitioned for redetermination of their deficiencies,
4
and the Tax Court affirmed. Appellants’ 2012 expenditures for
travel and living expenses were not “away from home” under
§ 162(a)(2), the Tax Court ruled, because they lacked “a
business reason to maintain a distant, separate residence” away
from their principal place of employment and so could not
claim a personal residence as a tax home. Tax Ct. Op. 24
(citing Wirt v. Comm’r, 55 T.C.M. (CCH) 1369, 1371 (1988);
Tucker v. Comm’r, 55 T.C. 783, 786 (1971)). As “full-time
students from abroad who came to the United States to work
for a single summer before returning to their home countries,”
appellants had no “business connections with their respective
home countries.” Id. at 26. Nor did their status as “J visa”
holders render them at home in their home countries for
purposes of the deduction inasmuch as a person’s “residence”
under immigration law is “not necessarily coterminous” with a
taxpayer’s “home” under § 162(a)(2). Id. at 27. Noting that
there was “no requirement at law that [a Summer Work Travel
Program] participant maintain a second abode in his home
country,” the Tax Court concluded appellants did not incur
additional travel and living expenses “because of the
exigencies of [their] trade or business.” Id. at 28. Rather,
“those expenses were by their personal choice and not by a
dictate of their employers or the law.” Id. at 29. This appeal
followed.
II
Appellants contend they were “away from home” under 26
U.S.C. § 162(a)(2) based on a private letter ruling by the IRS
and IRS guidance purportedly indicating that foreign students
holding student visas may deduct travel expenses. They also
point to the requirement that “J visa” recipients have an abode
in their home countries which they have “no intention of
abandoning.” Appellants’ Br. 33. Appellants further contend
that because their employment was temporary, they were not
5
required to show their expenses were incurred due to business
exigencies. But even if required to make such a showing,
appellants contend they satisfy the business exigencies test
because the travel and living expenses were incurred to meet
the requirements of the Summer Work Travel Program and to
work in the United States.
This court reviews decisions of the Tax Court “in the same
manner and to the same extent as decisions of the district courts
in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1).
The Tax Court’s legal determinations are reviewed de novo; its
factual findings and “disposition of mixed questions of law and
fact” are reviewed for clear error. Jombo v. Comm’r, 398 F.3d
661, 663 (D.C. Cir. 2005). Tax deductions are strictly
construed because they are “a matter of legislative grace”; “the
burden of clearly showing the right to the claimed deduction is
on the taxpayer.” INDOPCO, Inc. v. Comm’r, 503 U.S. 79, 84
(1992). The Tax Court’s interpretation of what § 162(a)(2)
requires a taxpayer to show is a legal conclusion subject to de
novo review, cf. Rogers v. Comm’r, 783 F.3d 320, 324 (D.C.
Cir. 2015), whereas the determination of whether a taxpayer
met that burden is reviewed for clear error, see Green Gas Del.
Statutory Tr. v. Comm’r, 903 F.3d 138, 145 (D.C. Cir. 2018).
The Internal Revenue Code provides that “[e]xcept as
otherwise expressly provided . . . , no deduction shall be
allowed for personal, living, or family expenses.” 26 U.S.C.
§ 262(a). Section 162 is an exception for certain trade or
business expenses, providing that a taxpayer may deduct “all
the ordinary and necessary expenses paid or incurred during the
taxable year in carrying on any trade or business, including . . .
traveling expenses . . . while away from home in the pursuit of
a trade or business.” Id. § 162(a)(2) (emphasis added). “[T]he
taxpayer shall not be treated as being temporarily away from
home during any period of employment if such period exceeds
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1 year.” Id. § 162(a). To qualify for this deduction, a taxpayer
must show that the expenses are (1) “ordinary and necessary,”
(2) incurred while the taxpayer was “away from home,” and
(3) incurred “in the pursuit of a trade or business.” Id.; see
Comm’r v. Flowers, 326 U.S 465, 470 (1946). Even if
appellants’ claimed expenses were necessary and their
temporary employment would raise an inference that they were
“away from home,” they fail to meet the third condition that
their expenses were incurred “in the pursuit of a trade or
business.”
In Flowers, 326 U.S. at 472, the Supreme Court,
construing a previous version of § 162(a)(2), concluded it was
“unnecessary” to resolve whether the word “home” meant a
taxpayer’s principal place of business or his place of residence,
because even if the Tax Court’s interpretation of the word
“home” as the taxpayer’s principal place of business was
implicit in its decision and even if that interpretation was
wrong, its judgment had to be sustained “if it properly
concluded that the necessary relationship between the
expenditures and the [employer’s] business was lacking.
Failure to satisfy any one of the three conditions destroys the
traveling expense deduction.” Id. The Court explained:
Travel expenses in pursuit of business within the
meaning of [now § 162(a)(2)] could arise only when
the [employer’s] business forced the taxpayer to travel
and to live temporarily at some place other than [his
usual residence], thereby advancing the interests of
the [employer]. Business trips are to be identified in
relation to business demands and the traveler’s
business headquarters. The exigencies of business
rather than the personal conveniences and necessities
of the traveler must be the motivating factors.
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Id. at 474.
Since Flowers, the IRS, several courts of appeals, and the
Tax Court have interpreted “home” as a taxpayer’s principal
place of business, see, e.g., Andrews v. Comm’r, 931 F.2d 132,
136-37 (1st Cir. 1991), whereas others have held that “home”
means a taxpayer’s usual residence. For instance, in
Rosenspan v. United States, 438 F.2d 905, 911-12 (2d Cir.
1971), the Second Circuit concluded that “[w]hen Congress
uses such a non-technical word in a tax statute, presumably it
wants administrators and courts to read it in the way that
ordinary people would understand.” In its view, interpreting
“home” in light of the business exigencies condition is
“unnecessary for the protection of the revenue that [the
Commissioner] seeks.” Id. at 911. That is, proper application
of the business exigencies condition as articulated in Flowers
would eliminate any risk of taxpayers deducting travel
expenses incurred for personal reasons. See id.
Similarly, even if “home” generally means a taxpayer’s
principal place of business, see Tax Ct. Op. 16, and even if
temporary employment raises an inference that the taxpayer is
“away from home,” this does not eliminate the third statutory
condition. Courts have held that when a taxpayer “expects to
be employed in a location for only a short or temporary period
of time,” the “reasonable inference is that he is temporarily
making these travels because of a business necessity,”
Frederick v. United States, 603 F.2d 1292, 1294-95 (8th Cir.
1979), and “it would be unreasonable to expect the taxpayer to
move his home,” Rosenspan, 438 F.2d at 912. Both Frederick
and Rosenspan involved taxpayers whose business or trade
required them to travel for temporary posts of employment in
other cities and who were not expected to move their homes for
these temporary posts. In Peurifoy v. Commissioner, 358 U.S.
59, 60 (1958), the Supreme Court noted that the Tax Court had
8
treated temporary (as distinct from indefinite or indeterminate)
employment as an “exception” to the “general rule” under the
travel expense deduction. To that extent, had there been the
necessary employment connection, it would be reasonable to
infer appellants were “away from home” because they worked
in the United States temporarily. See generally Putnam v.
United States, 32 F.3d 911, 917 (5th Cir. 1994). That
inference, however, does not eliminate the third statutory
condition that the claimed expenses must be incurred “in the
pursuit of a trade or business.” 26 U.S.C. § 162(a)(2).
Appellants contend courts need not inquire into why a
temporarily employed taxpayer incurs travel expenses, but they
cite no authority for that proposition. Nothing in the IRS
materials on which they rely supports their view. Revenue
Ruling 93-86, 1993-40 I.R.B. 4, which they consider to support
the view that the Summer Work Travel Program is temporary
employment so their travel expenses are fully deductible, is
inapposite; the taxpayers addressed there were regularly
employed in one city before accepting a work assignment in
another city. Further, the Commissioner notes that “a written
determination” such as the private letter ruling appellants cite
“may not be used or cited as precedent.” Appellee’s Br. 35 n.7
(quoting 26 U.S.C. § 6110(k)(3)). Appellants also rely on an
IRS publication stating that a “nonresident alien [scholarship]
student or grantee may deduct away-from-home expenses
(meals, lodging, and transportation) . . . if he or she expects to
be away from his or her tax home for 1 year or less.” Internal
Revenue Service, Publication 515, Withholding of Tax on
Nonresident Aliens and Foreign Entities, at 22 (2012). That
publication neither cites § 162(a)(2) nor states that, for
temporary employment, expenses need not be incurred as a
result of business exigencies. Agency guidance could not, in
any event, contradict the plain terms of the third condition of
9
the statute. Cf. Air Line Pilots Ass’n, Int’l v. Chao, 889 F.3d
785, 792 (D.C. Cir. 2018).
The Supreme Court in Flowers interpreted the phrase “in
the pursuit of a trade or business” to require “a direct
connection between the expenditure and the carrying on of the
trade or business of the taxpayer or of his employer.” 326 U.S.
at 470. Consequently, “[t]ravel expenses in pursuit of business
within the meaning of” 26 U.S.C. § 162(a)(2) “could arise only
when the [employer’s] business forced the taxpayer to travel
and to live temporarily at some place other than” the taxpayer’s
home. Id. at 474. Appellants, who bear the burden to show the
deduction applies, point to nothing that would suggest
Congress intended to dispense with business exigencies as a
condition for application of the deduction in their
circumstances. Such legislative history as exists indicates that
Congress was concerned primarily with “persons traveling on
business,” i.e., “commercial travelers of the country, and
especially those who are traveling on a commission basis.” 61
Cong. Rec. 5201 (1921) (statement of Rep. Hawley).
Appellants were not employed in their home countries when
they traveled to the United States for temporary employment
and did not return to existing jobs when they returned home.
Although the Supreme Court in Peurifoy did not disturb the
Tax Court’s application of “an exception” where the taxpayers
were construction workers away on “temporary employment,”
its holding was limited to whether the “Court of Appeals has
made a fair assessment of the record” on the factual question
of whether the taxpayers’ employment was temporary. 358
U.S. at 60-61. Relying on the extra-textual doctrine of
temporary employment to excuse failure to satisfy the business
exigencies condition would allow an exception to swallow the
rule and ignore that deductions are to be “strictly construed,”
INDOPCO, 503 U.S. at 84.
10
In urging that “the ‘temporary’ work exception . . . was
intended to override the business exigencies test,” Appellants’
Br. 30, appellants maintain that the Tax Court erred in viewing
Hantzis v. Commissioner, 638 F.2d 248, 255 (1st Cir. 1981), to
“represent[] a fair statement of the law,” Tax Ct. Op. 25. They
suggest the First Circuit “appears to have confused the
temporary work exception with the well-established ‘itinerant’
rule” and therefore “reasoned that ‘only a taxpayer who lives
in one place, works in another, and has business ties to both is
in the ambiguous situation that the temporary employment
doctrine is designed to resolve.’” Appellants’ Br. 29 (quoting
Hantzis, 638 F.2d at 255). This contention does not advance
appellants’ cause. Under Flowers, the third condition is met
only when the employer’s “business forced the taxpayer to
travel and to live temporarily at some place other than” the
taxpayer’s home. Flowers, 326 U.S. at 474. Expenses incurred
“solely as the result of the taxpayer’s desire to maintain a
home” in one place while working in another are “irrelevant to
the maintenance and prosecution” of the employer’s business.
Id. at 473. Applying Flowers, this court upheld the Tax Court’s
denial of a deduction because the taxpayer “neither maintained
a place of abode in Atlanta, nor brought his family to
Washington, in order to do the work which he was employed
to do.” York v. Comm’r, 160 F.2d 385, 386 (D.C. Cir. 1947).
Therefore, even if appellants were “away from home,” any
expenses must satisfy the business exigencies condition.
Appellants fail that prong.
Appellants Liljeberg, Zolotareva, and Conway worked in
the United States during the summer of 2012 at Noah’s Ark,
Roche Harbor Resort, and Gosman’s Dock Restaurant,
respectively. These employers did not require employees to
move to the United States temporarily; rather, appellants chose
to come to the United States to participate in the Summer Work
Travel Program. Their travel expenses flowed from that choice
11
rather than the needs of their temporary employers. To the
extent obtaining a “J visa” required appellants to have no
intention of abandoning a residence in their home countries, 8
U.S.C. § 1101(a)(15)(J), appellants would equate maintaining
an abode for immigration purposes and maintaining a home for
business purposes, but the Tax Court has rejected that
equivalence. See Tax Ct. Op. 27 (citing Pappas v. Comm’r, 34
T.C.M. (CCH) 1397, 1398 (1975)). Shifting the focus from the
demands of the taxpayer’s employer to the requirements of
immigration law would expand the travel expenses deduction
in defiance of Flowers and the narrow scope accorded to
deductions.
Finally, appellants’ reliance on United States v. LeBlanc,
278 F.2d 571, 577 (5th Cir. 1960), is misplaced. There, state
law required a Louisiana judge to maintain a home in
Napoleonville, his usual residence, and to perform certain
judicial duties in New Orleans. Id. at 574-75. Appellants
maintain that they are like Justice LeBlanc because they, too,
were legally “required to maintain home abodes in their home
countries to be able to work in [the] jobs they did in the U.S.
during 2012.” Appellants’ Br. 35. But the state law
requirement of multiple homes in LeBlanc was relevant only
because the judge’s employer was the state of Louisiana. 278
F.2d at 576. The judge’s travel and living expenses resulted
from the demands of his employer rather than “the personal
conveniences and necessities of the traveler.” Flowers, 326
U.S. at 474. Appellants’ employers were not the source of the
travel and living expenses. Rather, appellants incurred those
expenses because they voluntarily chose to participate in the
Summer Work Travel Program. Allowing foreign students
who travel to the United States on a “J visa” for temporary
employment to deduct their travel expenses when students who
are U.S. citizens traveling within the United States to seek
temporary employment cannot, see Weiberg v. Comm’r, 639
12
F.2d 434, 437 (8th Cir. 1981), would be a peculiar and
irrational result.
Accordingly, because appellants did not incur the travel
and living expenses at issue “in the pursuit of a trade or
business,” they may not deduct those expenses under 26 U.S.C.
§ 162(a)(2), and we affirm the judgment of the Tax Court.