United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued September 11, 2018 Decided November 2, 2018 No. 17-1204 RICHARD LILJEBERG, APPELLANT v. COMMISSIONER OF INTERNAL REVENUE SERVICE, APPELLEE Consolidated with 17-1205, 17-1207 On Appeal from the Decision of the United States Tax Court Leigh D. Roadman argued the cause for appellants. With him on the briefs were Daniel T. Hartnett and Steven S. Brown. Norah Bringer, Attorney, U.S. Department of Justice, argued the cause for appellee. On the brief were Richard Farber and Regina S. Moriarty, Attorneys. Travis A. Greaves, Deputy Assistant Attorney General, entered an appearance. Before: ROGERS and PILLARD, Circuit Judges, and SENTELLE, Senior Circuit Judge. 2 Opinion for the Court filed by Circuit Judge ROGERS. ROGERS, Circuit Judge: This is an appeal from the decision of the Tax Court denying a deduction on income earned by three foreign nationals who participated in the State Department’s Summer Work Travel Program in 2012. The Internal Revenue Service denied appellants’ claimed tax deduction for travel and living expenses incurred “while away from home in the pursuit of a trade or business,” 26 U.S.C. § 162(a)(2). The Tax Court affirmed because appellants’ travel and living expenses were not so incurred but arose from a personal choice to participate in the Summer Work Travel Program rather than the demands of their (temporary) employers. We affirm. I. The State Department administers the Exchange Visitor Program, which designates sponsors “to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences.” 22 C.F.R. § 62.1(b) (2012); see Mutual Educational and Cultural Exchange Act of 1961, Pub. L. No. 87-256, 75 Stat. 527 (codified as amended at 22 U.S.C. § 2452). One component of the Exchange Visitor Program is the Summer Work Travel Program, which provides “foreign students who are enrolled full-time and pursuing studies at accredited post-secondary academic institutions . . . with the opportunity to work and travel in the United States” for a period of up to four months, during their summer vacations. 22 C.F.R. § 62.32(b), (c). Income earned is subject to federal income taxes. 26 U.S.C. § 871(b)(1), (c). To participate in the Summer Work Travel Program, a student must obtain a nonimmigrant visa, known as a “J visa,” 22 C.F.R. § 62.1(b), which, as relevant here, is issued to “an alien having a residence 3 in a foreign country which [the person] has no intention of abandoning,” 8 U.S.C. § 1101(a)(15)(J). Appellants are foreign nationals who participated in the Summer Work Travel Program in the summer of 2012. (1) Richard Liljeberg is a citizen of Finland who worked as a lifeguard at Noah’s Ark in Wisconsin as part of the Program. Liljeberg sought to deduct “$995 for airfare to and from the United States, $500 for the cost of the program, $35 for the cost of his J-1 Visa, and $170 for insurance.” Before participating in the Program, he was a full-time university student ...
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