Larry L. Leuenberger, 2018 T. C. Sum. Op. 52, filed 11/8/18, finds himself in Leporello’s position, as Afghanistan, where he flew on 60-day rotations and thus never spent the magic 330 days out of the US of A, wasn’t on Treasury’s waiver list for the years at issue (2012 and 2013).

So although Larry flew in and out of Bagram, and had a rocket land a couple yards (hi, Judge Holmes) from the barracks where he and fellow civilian aircrew lived, his “abode” was still over here. And he can’t waiver out.

“…petitioner was an authorized contractor working for the Department of Defense in rotational shifts.  Petitioner did not leave the air base where he lived and worked because of safety concerns.  His family continued to reside in the United States while he worked overseas.  In addition to returning to his home in the United States where he lived during the ‘off’ periods of his rotational shifts, petitioner owned and managed multiple investment properties in the United States in [one year at issue], one of which was a ‘residential apartment complex’.  Petitioner also owned and registered various vehicles in [Stateside during years at issue] and maintained a number of bank accounts, brokerage accounts, and retirement accounts.  In contrast petitioner has not shown any connection with Afghanistan other than the location of his employment.” 2018 T. C. Sum. Op. 52, at pp. 8-9.

So Larry needed the waiver for the Section 911 330 days. He also needed Afghanistan to be on the Treasury waiver list for the years at issue.

Larry says “…it is incomprehensible that the Secretary, in consultation with the Secretary of State, would omit Afghanistan, ‘the United States of America’s longest engagement ever, * * * 16 years and counting’, from a list of countries that should be all inclusive of locations with war, civil unrest, or similar adverse conditions.” 2018 T. C. Sum. Op. 52, at p. 12.

Except it wasn’t.

And Larry should have known there was no chance he would stay in Afghanistan for 330 days each year, when he was on a rotational schedule and knew there was a war before he got there.

But IRS should have known they needed a Section 6751(b) Boss Hoss sign-off. Not having such, Larry avoids the 20% understatement chop.

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