Unpublished Disposition, 852 F.2d 571 (9th Cir. 1988)

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.