## Facts

- David A. Wilbert, a Northwest Airlines mechanic, lived with his wife in Hudson, Wisconsin, near Minneapolis, where he had previously worked.
- After being laid off in April 2003, Wilbert used contractual “bumping” rights to take positions held by less-senior mechanics.
- He worked briefly in Chicago, then for three weeks in Anchorage, and then for one week at LaGuardia in New York before being bumped each time and exhausting his bumping rights.
- About three weeks later, Northwest rehired him outside the bumping system into an interim Anchorage position (maximum nine months); he worked there for several months and was then laid off permanently.
- Wilbert incurred nearly $20,000 in living expenses (e.g., lodging and meals) while working in Chicago, Anchorage, and New York, and claimed them as deductible travel expenses on his 2003 return under 26 U.S.C. § 162(a).
- The Commissioner disallowed the deductions and assessed a $4,380 deficiency; the Tax Court upheld the deficiency, treating the out-of-town work as “indefinite,” not “temporary.”
- Wilbert also asserted a Minneapolis-based real estate business as an alternative basis for treating Minneapolis as his tax home, but he earned about $2,000 from that activity.

## Issues

1. Whether living expenses incurred while working far from one’s residence after exercising seniority “bumping” rights are deductible as “traveling expenses … while away from home” under 26 U.S.C. § 162(a).
2. How the “temporary” versus “indefinite” employment framework applies to a sequence of short-term placements obtained to avoid unemployment.
3. Whether minimal real estate activity near the taxpayer’s residence can establish that location as the taxpayer’s “tax home” for § 162(a) purposes.

## Decision

- The Seventh Circuit affirmed the Tax Court’s decision sustaining the deficiency.
- The court held Wilbert’s Chicago, Anchorage, and New York living expenses were not deductible under § 162(a).
- The court concluded the duplicate living costs resulted from Wilbert’s personal decision to maintain a home near Minneapolis despite lacking realistic prospects of returning there for Northwest work, rather than from business necessity.
- The court rejected Wilbert’s claim that his limited real estate activity made Minneapolis his tax home.

## Legal Principles

- For § 162(a), “away from home” generally refers to being away from the taxpayer’s tax home, which is tied to the principal place of business rather than the personal residence.
- Travel-expense deductions are meant to mitigate the burden of maintaining two abodes for business reasons; they do not cover costs created by personal preferences about where to live.
- The “temporary” versus “indefinite/permanent” employment labels are tools for identifying when duplicated living expenses are business-driven; uncertainty about job duration alone does not make distant employment “temporary” in the sense that supports deductibility.
- Minor, low-income side activities typically do not shift a taxpayer’s tax home away from the principal employment base.

## Conclusion

Because Wilbert’s employment base had shifted away from Minneapolis and his continued household there reflected personal choice rather than employer-driven necessity, his out-of-town living expenses were personal and nondeductible under § 162(a), and the assessed deficiency was properly sustained.


Wilbert v. Commissioner, 553 F.3d 544 (7th Cir. 2009)