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ROSENSPAN v. UNITED STATES

March 25, 1970

Robert ROSENSPAN, Plaintiff,
v.
UNITED STATES of America, Defendant


Rosling, District Judge.


The opinion of the court was delivered by: ROSLING

ROSLING, District Judge.

Plaintiff, Rosenspan, a traveling salesman, seeks refund of federal income tax and accrued interest allegedly overpaid by him for the years 1962 and 1964. For 1962 the excess was $1,209.86, and for 1964, $795.81. These sums were deducted by him on his returns as expenditures for food and lodging while in the sales territory assigned to him by his employers. He was then, so he contends, "away from home" within the meaning of Section 162(a) (2) of the Internal Revenue Code of 1954, ("IRC"). That provision as in effect for 1962 reads in pertinent part:

 
"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 the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; * * *"

 As amended in a respect not here pertinent the provision applicable to 1964 reads:

 
"(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; * * *"

 Upon disallowance of the deduction plaintiff paid the tax, and now brings action for its recovery.

 The facts have been stipulated. They are as follows:

 Plaintiff's employers were jewelry manufacturers with headquarters in New York City. He worked in these offices five or six times a year for a total of 30 days. During the remainder of the year he traveled extensively within his assigned territory, calling upon retail jewelry stores in Ohio, Indiana, Michigan, West Virginia, Kentucky and western Pennsylvania. He traveled by automobile, stopping at motels or hotels, and usually spent not more than one or two nights in each city. Sometimes he used a convenient major city within his territory as a point from which to operate for a few days while visiting customers in nearby towns. He spent no substantial portion of the year in any one city in his territory and had no business post or station or permanent place of residence within the sales territory.

 The plaintiff was a widower with adult married children who had established their own separate households. He himself had grown up in Brooklyn and while his wife was alive had maintained his family home there. From 1948 through the taxable years involved plaintiff used his brother's residence in Brooklyn as his "personal residential address." He kept some of his clothing and other personal belongings in his brother's home and registered and voted from his address. His tax returns were filed from the address and he received his personal mail there. "Out of a desire ...


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