Wirth v. Commissioner , 61 T.C. 855 ( 1974 )

Andrzej T. Wirth, Petitioner v. Commissioner of Internal Revenue, Respondent

Wirth v. Commissioner

Docket No. 2583-71

United States Tax Court

61 T.C. 855; 1974 U.S. Tax Ct. LEXIS 131; 61 T.C. No. 89;

March 28, 1974, Filed

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Decision will be entered under Rule 155.

T, a citizen of Poland, left Warsaw in April 1966 to attend a 1-week conference at Princeton University. His nonimmigrant United States visa was valid for 2 years. He left behind in Warsaw his wife and daughter. While in the United States he obtained temporary teaching jobs at several universities or colleges. In the summer of 1967 he met his wife by prearrangement in Yugoslavia, and learned that serious political and personal differences had developed between them. She later divorced him. He returned to the United States in time to begin teaching in the fall. In the spring of 1968 he was denounced by name in Poland as part of a wave of governmental attacks upon Polish intellectuals living abroad who did not follow the party line. While in the United States he was required to submit his passport to a Polish consulate for endorsement every 3 months, and it was never returned to him after such submission in late 1967 or early 1968. The consulate directed him to return to Poland, but he refused to do so. Although he became deportable in 1968 after the expiration of his 2-year visa, he nevertheless remained in the United States; permission to remain here has since been granted, and he is now a resident alien. Held, T was not "away from home" in 1968 and was therefore not entitled to deduct expenses during that year for meals, lodging, etc., under sec. 162(a)(2), I.R.C. 1954.

Andrzej T. Wirth, pro se.

Barry D. Gordon, for the respondent.

Raum, Judge.

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RAUM

The Commissioner determined a deficiency of $ 2,104.85 in petitioner's 1968 income tax. The only question remaining for decision is whether certain of petitioner's expenditures during 1968 are deductible as "traveling expenses * * * while away from home" within the meaning of section 162(a)(2), I.R.C. 1954.

FINDINGS OF FACT

The parties have filed a stipulation of facts which, together with its accompanying exhibits, is incorporated herein by this reference.

Petitioner Andrzej T. Wirth resided in Riverdale, N.Y., at the time of filing his petition herein. He timely filed a United States nonresident alien Federal income tax return for 1968 with the Internal Revenue Service, Office of International Operations at Washington, D.C.

Petitioner's native land is Poland where, until the events described herein transpired, he lived with his wife and daughter and held a position as a research professor with the Institute of Literature of the Polish Academy of Sciences in Warsaw. Prior to 1963, Wirth, who holds a doctorate degree in German literature, had been both a drama critic and editor of a weekly magazine in Poland, Nowa Kultura, which addressed itself to cultural subjects. However, in 1963 the Polish Government, citing unacceptable revisionistic tendencies, confiscated the magazine leaving petitioner without a job. After supporting himself through freelance writing for a period, petitioner shifted his field of work and accepted a research appointment to the Polish Academy of Sciences where, he felt, the nonpolitical nature of his work would attract less governmental interest than his earlier journalistic activity. Nonetheless, he became increasingly uncomfortable in Poland as a growing anti-intellectual movement led to tighter censorship and more restrictive travel limitations.

Through his books and other scholarly contributions to his field, Wirth came to the attention of certain American scholars who invited him to attend a literary conference in the spring of 1966 at Princeton University which he accepted. Petitioner then obtained a so-called "service passport," available only to members of the Polish Academy of Sciences, and he entered the United States in late April 1966, as an educational and cultural exchange visitor under a nonimmigrant visa, ¹ valid for a maximum of 2 years. Although the conference at Princeton lasted only 1 week, during that time petitioner received an invitation to teach at the University of Massachusetts in Amherst as a visiting professor for the academic year 1966-67. Because he was still in the employ of the Polish Academy of Sciences, Wirth felt obliged to request a year's leave of absence before accepting the visiting professorship. The Academy refused to grant him permission, an event which petitioner interpreted as a political decision. He therefore resigned from the Academy and thereupon accepted the position at the University of Massachusetts where he in fact taught for the entire academic year of 1966-67. Although petitioner's passport had been issued as a "service passport," available only to members of the Academy, his resignation from the Academy apparently did not render it invalid.

After completing his duties at the University of Massachusetts, Wirth traveled to Yugoslavia in August 1967, where he met his wife by prearrangement. At that time he had already received an offer to return to the University of Massachusetts for the following academic year, as well as an offer of a Rockefeller grant to enable him to work on a book. Although he had not yet decided which offer he would accept, he did feel that continuing his work in the United States was professionally desirable. For that reason he chose to meet his wife in Yugoslavia rather than in Poland where he would have been required to submit his passport to the Polish authorities. In order to return to the United States he would have had to request a new passport, an arduous task at best and always subject to the risk of not obtaining one at all. In Yugoslavia petitioner urged his wife to join him in the United States for the duration of his stay, but he discovered then that serious political differences and personal problems had developed between them. He therefore returned to America alone. He accepted the Rockefeller grant of $ 1,200 to work on a book during the fall of 1967, and late in 1967 he accepted concurrent teaching positions at San Francisco State College and Stanford University for the semester commencing January 1968. During this time and throughout 1968 petitioner sent his wife $ 200 per month for support although she was employed as an architect and presumably derived an independent income therefrom.

During petitioner's stay in the United States, the Polish authorities required him to submit his passport to the Polish consulate in Chicago every 3 months for certain necessary endorsements. In addition to obtaining approval from the Polish consulate, he also had to submit his validated passport to the United States immigration officials accompanied by proof of each new appointment which he accepted in order to verify his continuing status as an educational and cultural exchange visitor and thereby obtain the necessary extension of his visa. When petitioner sent his passport to the Polish consulate in either December 1967, or January 1968, however, the authorities did not return it to him. Instead, they directed him to return to Poland immediately; he refused to comply. Although he requested his passport back, the Polish authorities ignored him until June 1968, when they notified him in writing that his passport would not be returned. As a result, petitioner's American visa, the validity of which was contingent upon his possession of a valid passport, ² expired thereby subjecting him to the risk of deportation. Meanwhile in Poland, during the spring of 1968, petitioner was denounced by name in the official party newspaper as well as by party speakers in the context of a wave of governmental attacks upon Polish intellectuals who lived abroad and refused to follow the party line. During 1968 petitioner was expelled from the Writer's Union, without which membership he could not continue to write in Poland. His books were withdrawn from circulation in Poland and his name was deleted from those plays which he had translated and which appeared in the theaters of Warsaw and other cities and towns. In June 1968, petitioner learned that his wife had commenced divorce proceedings in Poland, which culminated in a divorce decree early in 1969 and her remarriage shortly thereafter.

Petitioner continued to teach at Stanford throughout 1968. On October 8, 1968, petitioner's request for a temporary extension of his stay in the United States was denied by the Immigration and Naturalization Service of the Justice Department, and he was ordered to leave by November 8, 1968. The deadline for his departure was subsequently extended to January 18, 1969. Before this extension elapsed, however, Wirth obtained a United States immigration visa which enabled him to remain in the United States. On December 10, 1971, he became a resident alien.

On his 1968 Federal income tax return, petitioner deducted $ 5,590 as expenses incurred while living away from his home in Poland during 1968. In his deficiency notice the Commissioner disallowed the deduction "because it has not been established that said amount constitutes an ordinary and necessary business expense or was expended for the purpose designated." On brief, however, the Commissioner conceded that petitioner had spent the money as claimed.

OPINION

The disposition of this case depends entirely upon whether petitioner's living expenses in 1968 were incurred "while away from home in the pursuit of a trade or business" as provided in section 162(a)(2), I.R.C. 1954:

SEC. 162. TRADE OR BUSINESS EXPENSES.

(a) In General. -- There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including --

* * * *

(2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; * * *

Petitioner contends that in 1968 not only did he intend to return eventually to Warsaw but also there was the imminent and real possibility that he would be compelled to do so on short notice, and as a result thereof his "home" continued to be in Warsaw while he was in the United States. The Commissioner responds that, at least for purposes of section 162(a)(2), petitioner's circumstances indicate that by 1968 his "home" was no longer in Warsaw and he can therefore not be considered to have been "away from home." We agree with the Commissioner.

A taxpayer cannot be "away from home" unless he has a "home"; stated otherwise, the "home" of a taxpayer without a permanent and fixed place of abode is located wherever the taxpayer happens to be. James v. United States, 308 F. 2d 204, 207 (C.A. 9); Rosenspan v. United States, 438 F. 2d 905, 912 (C.A. 2), certiorari denied 404 U.S. 864; United States v. Mathews, 332 F. 2d 91, 93 (C.A. 9). Consequently, a taxpayer has a "home" for the purpose of section 162(a)(2) only when he has incurred substantial living expenses at a permanent place of abode. James v. United States, supra at 208.

The application of this standard to the totality of petitioner's circumstances in 1968 persuades us that Warsaw was not his "home" at that time. Warsaw had quite clearly ceased to be his permanent place of abode. He had left Poland in 1966 fully cognizant of the increasingly anti-intellectual climate which the Government fostered and which had already forced him to leave his chosen field of work. By abandoning his position at the Institute of Literature of the Polish Academy of Sciences, Wirth had severed his sole remaining employment tie to Poland. Thereafter, he began to create a reputation for himself in American academic circles. After teaching two terms at the University of Massachusetts, he accepted a Rockefeller grant to work on a book and subsequently took concurrent teaching positions for the 1968 spring term at Stanford and San Francisco State College.

Although Wirth's family remained in Warsaw, which would normally indicate the existence of a permanent abode, the facts were otherwise here. Wirth had tried to persuade his wife to join him in the United States for the duration of his stay, only to discover that serious political and personal differences threatened his marriage. The fact that he continued to send some money to his estranged wife strikes us as no more indicative of the existence of a permanent abode than another man's maintenance payments to his wife following a separation. Indeed, the deterioration of his marital relationship which ended in divorce and the prompt remarriage of his former wife underscore the conclusion that he no longer had an abode in Warsaw to which he might return.

In addition to his discontinued employment ties and impaired marital links to Poland, the increasingly unfavorable political climate in Poland strongly suggests that Warsaw could no longer be considered his permanent abode. Petitioner admitted to his growing discomfort with life in Poland prior to his leaving in 1966. By the summer of 1967 he was sufficiently concerned about the Polish Government's attitude towards him to make it necessary to meet his wife in Yugoslavia rather than in Poland. When the Polish authorities withheld his passport at the end of 1967, Wirth balked at their demand that he return to Poland, a strong indication that he had by that time rejected at least the permanency of his prior life in Poland.

In view of all this, we are persuaded that Warsaw had ceased to be his permanent abode. His contacts with Poland during that time were not such as to give him a "home" there for purposes of section 162 (a)(2). We are not unmindful that ties to one's homeland are not easily broken nor that the United States might have compelled Wirth to return. But the issue before us is whether Poland was petitioner's "home" during 1968, not whether he might eventually have returned to Poland to reestablish a permanent abode of the nature which he had abandoned after arriving in this country. Consequently, petitioner did not maintain a "home" in Warsaw in 1968 from which to be "away from" and is therefore not entitled to a deduction for the living expenses which he incurred in the course of the year. During the year 1968 his situation was similar to that of an itinerant who has no permanent home and whose "home" for tax purposes is where he resides temporarily from time to time. In petitioner's case that was in the area of the universities at which he taught and not in Warsaw. The expenses which he incurred for such items as meals and lodging were nondeductible personal expenses rather than business expenses incurred while traveling "away from home."

To give effect to an uncontested claim for refund unrelated to the issue herein,

Decision will be entered under Rule 155.

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Footnotes

• 1. Sec. 221(a) of the Immigration and Nationality Act authorizes the issuance of a "nonimmigrant visa" to an eligible "nonimmigrant" as defined in sec. 101(a)(15). Among the classes of "nonimmigrants" set forth therein, there is a provision for educational and cultural visitors, who are described as follows (8 U.S.C. sec. 1101(a)(15)(J)):

  (J) an alien having a residence in a foreign country which he has no intention of abandoning who is a bona fide student, scholar, trainee, teacher, professor, research assistant, specialist, or leader in a field of specialized knowledge or skill, or other person of similar description, who is coming temporarily to the United States as a participant in a program designated by the Secretary of State, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training, and the alien spouse and minor children of any such alien if accompanying him or following to join him.

  It was apparently by virtue of this authority that Andrzej Wirth was issued a nonimmigrant visa. It is further provided in sec. 214(a) of the Act that admission to the United States as a nonimmigrant shall be for such time and under such conditions as the Attorney General may by regulations prescribe (8 U.S.C. sec. 1184(a)). The applicable regulations state that every nonimmigrant alien applicant for admission or extension of stay in the United States shall, among other requirements, "present a passport upon admission and only when requested in connection with an extension of stay," valid for a minimum period of 6 months from the date of the expiration of the initial period of his admission or contemplated initial period of stay ( 8 C.F.R. sec. 214.1↩).

• 2. Although it appears that the 2-year visa issued to petitioner in April 1966, would have expired by its own terms in April 1968, the parties have not addressed themselves to this point, focusing instead upon the formal loss of his passport in June 1968. Regardless of what the actual cause was, it is clear that by the time of receiving notification from the Polish authorities, petitioner was in the United States without a visa, contrary to the express orders of the Polish Government and subject to deportation by the United States Government.↩