The opinion of the court was delivered by: RAMBO
On October 7, 1985, plaintiffs Thomas Kohr and Marilyn Kohr, husband and wife, filed this action in federal court in the Eastern District of Pennsylvania, seeking a refund of $1,167.37 plus interest, for federal income taxes paid on their joint return for 1981. On defendant's Motion to Dismiss, the district court transferred the action to the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1406(a), effective January 27, 1986.
The undisputed facts are as follows: Plaintiffs, husband and wife, were residents of Lebanon, Pennsylvania at the time they filed this Complaint. Plaintiffs filed a joint federal income tax return for the calendar year 1981. Hereinafter, plaintiff will refer solely to Thomas J. Kohr.
Plaintiff, Thomas Kohr, was employed as a construction electrical worker since 1969. Beginning on December 22, 1980, Kohr began working for Bechtel Construction, Inc. at the Limerick Power Plant near Norristown, Pennsylvania. The history of his employment is as follows:
Date Reason for Employer
From To Leaving
01/80 06/80 lack of work Catalytic, Inc. (Wilkes-Barre)
06/80 09/80 lack of work H.P. Foley (Reading)
09/80 12/80 lack of work Bogan (Norristown)
12/20/80 05/84 lack of work Limerick (Norristown)
05/84 10/84 lack of work Limerick (Norristown)
10/84 04/30/85 lack of work Catalytic, Inc. (Wilkes-Barre)
05/20/85 06/08/85 lack of work Limerick (Norristown)
06/23/85 10/04/85 lack of work H.P. Foley (Reading)
10/28/85 01/10/86 lack of work General Electric (Steelton)
03/27/86 present Limerick (Norristown)
Kohr was a member of the International Brotherhood of Electrical Workers (IBEW) Local No. 143, headquartered in Harrisburg, Pennsylvania. The Limerick nuclear power plant construction job was under the jurisdiction of IBEW Local 380, headquartered in Norristown, Pennsylvania. Plaintiff and his wife have lived in Lebanon, Pennsylvania all their married lives and in 1979 purchased a house there for $58,000 with a $35,000 mortgage at 10 1/2 percent interest. The Limerick construction site was 58 miles from the Kohr's house in Lebanon, Pennsylvania. In 1981, the tax year in question, Mr. Kohr maintained his residence in Lebanon, drove to Norristown each working day and incurred $2,800 in automobile expenses in traveling to and from his house and the construction job site in Norristown, Pennsylvania.
When Kohr began working at Limerick, he was not told anything about how long the job would last. In addition to the typical uncertainty surrounding job duration on a big project, due to common coordination problems, Kohr was uncertain of the length of his employment because he was working outside the jurisdiction of his Local No. 143. Further, the construction of the Limerick project itself was plagued with problems and delays from the start in 1970.
Kohr continued to seek work within the jurisdiction of his own Local No. 143 by registering his availability for employment on the out-of-work list of Local No. 143. In 1981, Kohr viewed his job at Limerick as being only on a day-to-day basis.
Plaintiff attempts to claim his automobile expenses incurred in driving to and from his place of work as a trade or business expense deduction on his 1981 tax return under 26 U.S.C. § 162. Section 162 provides in pertinent part,
(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 --
26 U.S.C. § 162. As shown in Judge Nealon's opinion, two separate analyses apply to this section of the Tax Code. Kresge v. U.S., 82-1 U.S. Tax Cas. (CCH) P9180, 49 A.F.T.R.2d (P-H) 673 (M.D.Pa. 1982).
First, a business expense may be deductible under subsection (a) of section 162 if the expenses are "ordinary and necessary" and incurred while "carrying on a trade or business." 26 U.S.C. § 162(a). Under this provision, courts have applied the "temporary or indefinite" test. See e.g., Kasun v. U.S., 671 F.2d 1059, 1062 (7th Cir. 1982). Under this test the ...