Attorney-at-Law

WORD TO THE COMMISSIONER

In Uncategorized on 07/08/2021 at 16:19

Just yesterday I applauded the bipartisan Congressional initiative (doubtless inspired by you and your predecessors) to require proof of competency and continuing professional education on all PTIN holders; see my blogpost “Drying Up My Sources,” 7/7/21.

Well, Mr. Rettig, you might want to call up your Congressional allies and suggest they add a few of your own coadjutors to the shape-up and brush-up squad. Starting with Paul Warque, whose story Judge Elizabeth A. (“Tex”) Copeland tells in Paul Warque and Marie Warque, 2021 T. C. Sum.  Op. 18, filed 7/8/21.

Now it’s not want of resources that’s the cause of Paul’s difficulties.  “…Mr. Warque had access to many tax law research resources, including Westlaw, that would enable him to research tax laws.” 2021 T. C. Sum. Op. 18, at p. 4.

Paul’s homestead was in Sin City, but his “post of duty” was in Laguna Niguel, CA. Paul asked for a PCS, and was placed on the eligible list twice in the three (count ’em, three) years at issue. He got a TDY hardship for the last year, but it was strictly temporary. If you don’t know what a PCS, or TDY, is, consider yourself lucky. And you’ll still be lucky when I tell you that PCS is “Permanent Change of Station,” and TDY is “Temporary Duty”).

But making the eligible list guaranteed nothing. “Mr. Warque’s approval letter stated: This is to inform you that your hardship application has been approved. Your name has been updated in the Special Programs database…. This does not mean you have a job placement offer at this time. However, you will be considered for future vacancies in your desired post of duty with the status of a hardship eligible.” 2021 T. C. Sum. Op. 18, at pp. 4-5.

Nowise deterred by the conditional mood of such billets doux, Paul deducted his travel expenses, housing and meal expenses, and miscellaneous office supplies he used in NV as unreimbursed employee business expenses, claiming his home base was Sin City and CA was TDY because he reasonably believed he had been approved for transfer.

Judge Tex Copeland shreds that.

“On this record, applying either the test of this Court or that of the Court of Appeals for the Ninth Circuit, we hold that Mr. Warque was not “away from home” within the meaning of section 162(a)(2). Mr. Warque traveled from his personal residence in Las Vegas to his place of employment in Laguna Niguel. Mr. Warque began working in Laguna Niguel…knowing that it was a full-time non temporary position. This situation did not change when he applied for the hardship relocation. The hardship relocation approval letter clearly stated that there was no certainty that his duty station would be changed to Las Vegas. The approval was one of eligibility. The letter clearly stated that there was no guaranty he would be transferred. In fact he was not transferred. There could be no reasonable belief that the Laguna Niguel duty station changed to a temporary one…. Mr. Warque’s tax home for purposes of section 162(a)(2) was his Laguna Niguel place of employment. It was Mr. Warque’s personal preference to maintain a personal residence in Las Vegas. Consequently, the traveling expenses Mr. Warque incurred for mileage, rent, car repair and maintenance, car inspection, and meals were not covered by the exception in section 162(a)(2) and are not deductible.” 2021 T. C. Sum. Op. 18, at p. 13.

Paul also wrote off his office clothes (suitable for nonwork wear, so out), haircuts, “deodorant, mouthwash, and floss.” 2021 T. C. Sum Op. 18, at p. 15. And Paul never showed the office supplies he wrote off were not reimbursable by his employer.

No mention of chops, so maybe there were none.

So why should Commissioner Rettig add Paul to the list?

“In 2009 he began working as a revenue agent for the IRS. His ‘post of duty’ was the IRS examination office in Laguna Niguel, California; it was a permanent, not seasonal, position. Mr. Warque remained employed in this position through the years in issue. He worked in the Tax Exempt and Government Entities examination division. His duties included examining employee pension and retirement plans to determine whether the plans met the qualifications of section 401(a). He was also charged with making ‘discrepancy adjustments,’ which are adjustments to Federal income tax returns to correct a discrepancy between facts developed during an examination of an employer’s pension or retirement plan return and the line items on related income.” 2021 T. C. Memo. 18, at p. 3. (Footnote omitted).

Cross-training always helps.

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