LEMAY v. C.I.R. No. 87-4594. Summary Calendar.
837 F.2d 681 (1988)
John T. LEMAY and Yvonne P. Lemay, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
United States Court of Appeals, Fifth Circuit.
February 4, 1988.
C. Jerre Lloyd, McLeod, Little, Hopkins & Lloyd, Lake Charles, La., for petitioners-appellants.
Fred T. Goldberg, Jr., Chief Counsel, I.R.S., Michael L. Paup, Michael C. Durney, Acting Asst. Atty. Gen., William S. Rose, Jr., Ann Belanger Durney, Chief Appellate Sec., Tax Div., Dept. of Justice, Washington, D.C., for respondent-appellee.
Before POLITZ, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
JOHNSON, Circuit Judge:
Petitioners John T. and Yvonne P. Lemay filed a petition in the United States Tax Court seeking redetermination of the deficiencies determined by the Commissioner of Internal Revenue in their joint federal income taxes for 1981 and 1982. The dispositive issue addressed by the tax court was whether, during the period John T. Lemay was in Tunisia in 1982, he established a "tax home" in Tunisia within the meaning of 26 U.S.C. § 911(d)(3) so as to entitle the Lemays to a foreign earned income exclusion. Because we agree with the tax court that Lemay's "abode" remained in Louisiana during the relevant period, we affirm.
I. FACTS AND PROCEDURAL HISTORY
At all times during 1982, John T. Lemay was employed by the Penrod Drilling Company (Penrod) as an assistant drilling superintendent on an offshore oil rig located in the territorial waters of Tunisia. Lemay's work schedule consisted of alternating twenty-eight day periods on and off duty. After working on the oil rig for a continuous period of twenty-eight days, Lemay would travel from Sfax, Tunisia, to his
In a typical twenty-eight day work period, Lemay spent all of his time on board the rig, and was on call twenty-four hours a day. Due to Lemay's supervisory position with Penrod, however, he was occasionally permitted to travel to the mainland of Tunisia where Penrod had established a main office in Sfax. While he was in Sfax, Lemay stayed either in a hotel room or an apartment paid for by Penrod. On the Tunisian mainland, Lemay had minimal contact with local Tunisian residents, although he did meet some municipal officials, participate in some informal gatherings with Tunisian employees of Penrod, and attend a local soccer match.
During his employment with Penrod in Tunisia, Lemay's wife and daughter resided in the house Lemay maintained in Lake Charles, Louisiana. After his twenty-eight day work period in Tunisia, Lemay always returned home to his family for the entire twenty-eight day rest period. Lemay was registered to vote in Lake Charles, maintained his bank account in Lake Charles, and possessed a Louisiana state driver's license.
The Lemays timely filed a joint federal income tax return in 1982, reporting that during 1982 Mr. Lemay was a bona fide resident of Tunisia for 209 days and claiming a foreign earned income exclusion in the amount of $42,750.00, equal to fifty-seven percent of his total salary of $73,365.63. In 1985, the Commissioner determined a deficiency in the Lemays' joint federal income taxes for 1982.
Section 911(a)(1), as in effect in 1982, permitted a "qualified individual" to exclude from gross income for tax purposes up to $75,000.00 of foreign earned income.
In addition to the pertinent code section, the regulations under section 911 further define "tax home" as follows:
Section 1.911-2(b) (emphasis added). Thus, an individual's "tax home" for purposes of the foreign earned income exclusion depends on the application of a general rule subject to an overriding exception that the individual's "abode" not be in the United States. Bujol v. Commissioner, 53 T.C.M. 762, 763 (CCH 1987).
The determination of an individual's "tax home" pursuant to section 911(d)(3) is a legal issue, not a factual one. While the tax court determines the underlying facts, the ultimate conclusion to be drawn from those facts is a question of law. Carpenter v. United States, 495 F.2d 175, 178 (5th Cir.1974). See also United States v. Winthrop, 417 F.2d 905, 910 (5th Cir.1969).
An examination of circuit precedent reveals no cases interpreting the definition of "tax home" within the context of section 911 as it relates to the limiting "abode" language. However, in Bujol v. Commissioner, the tax court, addressing virtually identical facts to those in the instant case, held that the taxpayer's "abode" remained at his residence in Louisiana. The Bujol court concluded that the plain meaning of the term "abode" required such a result, stating:
Id. at 763-64 (footnote omitted). The Bujol court reasoned that the taxpayer's economic, familial, and personal ties to Louisiana, and his lack of contact with the foreign country dictated a conclusion that the taxpayer's "abode" remained in the United States. Id.
In sum, we believe that the tax court's interpretation and application of section 911 in the instant case is consistent with the plain language of the Code and regulations thereunder. On the facts before us, we cannot say that the tax court committed error in concluding that John T. Lemay's "abode" was in the United States. We, therefore, affirm the tax court's conclusion that Lemay was not entitled to the foreign earned income exclusion of section 911.
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