Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 571 (9th Cir. 1988)

Charles Ralph DAVIS and Florine Jane Davis, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.

No. 87-6024.

United States Court of Appeals, Ninth Circuit.

Submitted June 13, 1988.* Decided July 12, 1988.

Before SKOPIL, SCHROEDER and ALARCON, Circuit Judges.


MEMORANDUM** 

Charles and Florine Davis, husband and wife (the Davises) appeal pro se the district court's order granting the government's motion for summary judgment in their suit for a refund of taxes paid in 1978. The Davises contend that because their home was in Canoga Park, California, pursuant to 26 U.S.C. § 162(a) (2) they may deduct traveling expenses incurred when Mr. Davis undertook a temporary post of employment in La Canada, California.

The district court determination of where one's home and legal residence is for tax purposes is a question of fact. Frank v. United States, 577 F.2d 93, 97 (9th Cir. 1978). Findings of fact are reviewed under the clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.), cert. denied, 469 U.S. 824 (1984).

The record shows that the Davises' only contacts with Canoga Park were a post office box and their desire to return. Because the Davises did not incur substantial living expenses in Canoga Park, the district court properly determined that Canoga Park was not the Davises' home for tax purposes under 26 U.S.C. § 162(a) (2). James v. United States, 308 F.2d 204, 208 (9th Cir. 1962) (taxpayer who maintains post office box address and bank account does not have a home for tax purposes); Bochner v. Commissioner, 67 T.C. 824, 828 (1977) (a taxpayer's maintenance of a leased apartment in California and desire to return was insufficient to render California his tax home).

The judgment is AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3