MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This matter, which concerns certain expenses that the taxpayer claimed as business-expense deductions in tax years 2012 and 2013, is on appeal for the second time. In the first appeal, a panel of this court upheld the Appellate Tax Boards (ATB) disallowance of deductions for expenses related to maintaining the taxpayers “tax home” in New York, but remanded the matter for findings on “whether the taxpayer has properly raised whether he may deduct reasonable and necessary business expenses for his travel from New York to Massachusetts, and if so, whether he has demonstrated any such reasonable and necessary business expenses.” Libertini v. Commissioner of Revenue, 95 Mass. App Ct. 1120 (2019) (Libertini I). On remand the ATB found that the taxpayer was entitled to deduct mileage costs and tolls for eight round trips he made between New York and Fort Devens, Massachusetts, in each tax year; these expenses related to the taxpayers duties as a reserve member of the Army National Guard. The taxpayer appeals, arguing that he is entitled to additional deductions. We affirm.
We begin by noting that many of the taxpayers arguments are directed to the ATBs original decision and are not properly before us. These include his arguments that the ATB erred by finding that New York was his tax home, that the hearing commissioner and the attorney for the Commissioner of Revenue (Commissioner) colluded during the hearing, and that the hearing commissioner discouraged the taxpayer from submitting a posthearing brief and denied him timely access to the hearing transcript. The taxpayer raised or could have raised these arguments to the panel in Libertini I, which upheld the ATBs finding that New York was the taxpayers tax home and rejected the taxpayers claims that the ATB process was unfair. Under the law of the case doctrine, we will not “reconsider questions decided upon an earlier appeal in the same case” except in limited circumstances, not present here. King v. Driscoll, 424 Mass. 1, 8 (1996), quoting Peterson v. Hopson, 306 Mass. 597, 599 (1940). We therefore decline to revisit the issues raised by the ATBs original decision and instead confine our review to the decision issued on remand.
The taxpayer raises several challenges to the remand decision, which we address in turn. First, the taxpayer argues that, because he worked remotely from his home in Lowell for his job in New York, he was entitled to deduct all the expenses he incurred in traveling between Lowell and New York.
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For travel expenses to be deductible as business expenses, they must be “incurred in the pursuit of business” and “reasonable and necessary” to that end. Kasun v. United States, 671 F.2d 1059, 1061 (7th Cir. 1982). See 26 U.S.C. § 162(a); G. L. c. 62, § 2 (d) (2). “[T]he job, not the taxpayers pattern of living, must require the travel” (quotations omitted). Kasun, supra. Here, the ATB found in its original decision that the taxpayer made a personal choice to retain his home in Lowell and traveled there primarily for personal reasons. The taxpayer offered no evidence, nor did he assert, that his New York employer required him to work remotely from Lowell. The ATB therefore did not err in disallowing the deduction.
The taxpayer next argues that the ATB should have allowed him to deduct meals and lodging costs incurred during his trips from New York to Fort Devens. The taxpayer did not make this request to the ATB, however. Instead, in a memorandum he submitted on remand identifying his claimed deductions, the taxpayer expressly excluded meals and lodging expenses for “the 38 days spent on U.S. Army Reserve duty.” As the argument was not made to the agency, it is waived on appeal. See Albert v. Municipal Ct. of Boston, 388 Mass. 491, 493 (1983).
The taxpayer also failed to substantiate the deductions he claimed for mileage between Lowell and Fort Devens. According to the taxpayer, each time he traveled from New York to Fort Devens, he first stopped at his home in Lowell and then commuted from there to Fort Devens to conduct his reserve duties for the National Guard. Analogizing the stop in Lowell to a connecting flight or a stop at a hotel, the taxpayer contends that the mileage between Lowell and Fort Devens was deductible as a business expense. But the added commute was a result of the taxpayers choice to reside somewhere other than his tax home and was not necessitated by the demands of his work for the National Guard. In the memorandum he submitted to the ATB on remand, the taxpayer did not explain why the added commute was reasonable and necessary to fulfill his reserve duties, as was his burden. The ATB thus properly determined that the taxpayer could deduct only those expenses incurred traveling to Fort Devens from his tax home. See 26 U.S.C. § 162(a); G. L. c. 62, § 2 (d) (2).
Finally, the taxpayer argues that he was entitled to deduct expenses for travel from New York to Lowell necessitated by his duties as landlord for his multifamily property in Lowell. As the ATB found, however, the taxpayer failed to show that he traveled to Lowell for the purpose of carrying out his landlord duties or that his duties required his presence on the property. The taxpayer points to nothing in the record that would allow us to overturn this factual determination. See Medi-Cab of Mass. Bay, Inc. v. Rate Setting Commn, 401 Mass. 357, 369 (1987).
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Decision of Appellate Tax Board affirmed.
FOOTNOTES
2
. This argument could be seen as challenging the ATBs original decision, and not its remand decision. But because the Commissioner does not contend that the argument is procedurally improper, we will address it on the merits.
3
. To the extent we have not specifically addressed any of the taxpayers arguments, we have reviewed them and discern no basis on which to reverse the ATBs decision.