John J. Harvey and Irma P. Harvey v. Commissioner of Internal Revenue

Petitioners brought this action in the Tax Court under § 272 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 272 , to redetermine a deficiency assessed by the Commissioner with respect to petitioner’s income tax for 1953. Petitioners are husband and wife, Irma P. Harvey being a party to this proceeding only by reason of having filed a joint return with her husband. Hereinafter John J. Harvey will be referred to as taxpayer. This court has jurisdiction on appeal. Internal Revenue Code of 1954, § 7482, 26 U.S. C.A. § 7482.

The sole question here involved is whether taxpayer in 1953 was employed away from his home post and hence entitled to deduct from his “income” certain expenses of travel, meals and lodging as provided by § 22(n) and § 23(a) (1) (A) of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 22 (n), 23(a) (1) (A) or whether he was not. Section 22 (n) of the Internal Revenue Code of 1939 defines adjusted gross income to mean gross income minus “deductions allowed by section 23 which consist of expenses of travel, meals, and lodging while away from home * * * in connection with the performance * * * of services as an employee.” Section 23(a) (1) (A) provides for a…