Unpublished Disposition, 923 F.2d 861 (9th Cir. 1982)

MEMORANDUM^** 

James J. and Judith R. DeVincent (Taxpayer)¹  appeal the decision of the tax court affirming the Commissioner of Internal Revenue's (CIR) determination of income tax deficiencies for tax years 1982 and 1983.²  Taxpayer contends that the tax court erred in determining that he was not entitled to a business expense deduction under section 162 of the Internal Revenue Code ("Code") for either the costs he incurred in travelling between his home and the nuclear power plant construction project at which he was employed, or the costs he incurred living at the project. We review for clear error, see Neal v. C.I.R., 681 F.2d 1157, 1158 (9th Cir. 1982), and affirm.

Section 162(a) of the Code allows a taxpayer to deduct ordinary and necessary business expenses. See 26 U.S.C. § 162. Personal living or family expenses, however, are not deductible. 26 U.S.C. § 262. Thus, transportation expenses, generally referred to as "commuting expenses," including food and lodging, are generally nondeductible. See Neal, 681 F.2d at 1158; see also Albert v. C.I.R., 51 T.C.M. (CCH) 1371 (1986) (citations omitted).

An exception to this rule applies when the taxpayer's employment is temporary as opposed to indefinite in nature. See Neal, 681 F.2d at 1158. If it is very likely that taxpayer's stay away from home will be short, employment is treated as temporary and the expenses are deductible. See id. (citation omitted). If, however, the prospect is that the work will continue for an indefinite or substantially long period of time, the expenses are not deductible. See Kasun v. United States, 671 F.2d 1059, 1061 (7th Cir. 1982); see also Neal, 681 F.2d at 1159 (adopting Kasun as the law of this circuit). An employment or stay of anticipated or actual duration of a year or more strongly tends to indicate presence beyond a temporary period. See Rev.Rul. 60-189, 1960-1 C.B. 60, 63.

The CIR's determinations of tax deficiencies are presumed correct. See Welch v. Helvering, 290 U.S. 111, 114 (1933). The taxpayer bears the burden of proving that his employment was temporary. See Neal, 681 F.2d at 1158. The determination of whether a job is temporary is a factual question, Peurifoy v. C.I.R., 358 U.S. 59, 61 (1985), and the court must examine all of the facts and circumstances of a case before reaching its conclusion, see Kasun, 671 F.2d at 1061.

For the years in question, Taxpayer and his wife lived in Indianola, Washington, approximately 130 miles from the nuclear power plant construction site at Satsop, Washington. Taxpayer was employed as an operating engineer at the Satsop site for approximately two years. His period of employment was interrupted when he was laid off for one day on April 1, 1982.

Taxpayer argues that his employment at the Satsop site should be considered temporary. We disagree. Taxpayer was employed at the Satsop construction site for nearly two years. This factor in itself strongly indicates that his employment was not merely temporary. See Rev.Rul. 60-189, 1960-1 C.B. 60, 63. The fact that Taxpayer's employment merely lacked permanence does not mean that his employment was temporary. See Kasun, 671 F.2d at 1061. Taxpayer also argues that the tax court erred because it misapplied the law of this circuit. He asserts that the "true test" is whether it would be reasonable to expect the particular taxpayer to move his home nearer to his place of work. In Neal, we adopted Kasun as the law of this circuit, and thus declined to follow this analysis. See Kasun, 671 F.2d at 1061; Neal, 681 F.2d at 1159. Based on the facts of this case, we cannot say that the tax court's decision was clearly erroneous. See Neal, 681 F.2d at 1159.

AFFIRMED.