Commissioner of Internal Revenue v. Stidger/Dissent Douglas

by William O. Douglas

United States Supreme Court

386 U.S. 287

Commissioner of Internal Revenue  v.  Stidger

 Argued: Jan. 16, 1967. --- Decided: March 20, 1967

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice FORTAS concur, dissenting.

The resolution of this case depends upon whether respondent was 'away from home' when he incurred the expenses. ^[1] The term 'home' is not defined.

The Treasury's administrative rulings for many years have indeed treated the statutory word 'home' as meaning a taxpayer's principal place of business or employment. See Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 471-472, 66 S.Ct. 250, 253, 90 L.Ed. 203. To me it is clear that home means residence, with the qualification that a taxpayer should establish his residence as near to his place of employment as is reasonable. Ibid. Here the taxpayer was forbidden by military orders to take his family with him. He was, in other words, barred from taking his home with him whenever he went on military orders. The Commissioner points to the difficulty of having any rule other than the fixed one that 'home' means the taxpayer's principal place of business or employment. It is said that if the rule is not rigid, a great complex of facts would have to be considered: adequacy of housing at the new post, expense of moving, school facilities, health of the family, the need to care for elderly or ailing relatives, and the like. Only a fixed rule provides certainty, it is said; any other would threaten the desire for uniformity.

While equity is seldom an ingredient of the tax laws, while they are indeed inherently discriminatory in many ways, reflecting perquisites obtained by pressure groups, ^[2] we need not increase their harshness by giving simple words unusual or strained meanings-unless of course Congress has plainly made an arbitrary choice.

If the taxpayer chooses to maintain his residence at a place for removed from his place of business, the travel expenses are not 'ordinary and necessary' since not dictated by business needs. Commissioner of Internal Revenue v. Flowers, supra. On the other hand, if the taxpayer cannot reasonably maintain his residence at his place of business, the travel expenses are 'ordinary and necessary' and hence deductible. Such an interpretation would give effect to the congressional policy of allowing a deduction for expenses dictated by the needs of the taxpayer's employment.

In this case there can be no question that the expenses were incurred in the pursuit of the taxpayer's employment and that respondent could not move his residence to Iwakuni. There can be no question that the expenses were motivated by '(t)he exigencies of business rather than the personal conveniences and necessities of the' respondent. Commissioner of Internal Revenue v. Flowers, supra, 326 U.S. at 474, 66 S.Ct. at 254. I cannot see how the result is changed simply because respondent is a member of the armed services. The fact that Congress has afforded members of the military special allowances is no indication that Congress intended that they not be allowed to deduct 'ordinary and necessary' expenses incurred while away from their residence. Respondent received the same pay and basic allowances while in the Far East as he did while residing with his family in the United States. There was no increase to help defray the increased expenses incurred by him while required to live away from his family.

Notes

1. Section 162 of the Internal Revenue Code of 1954 provides in relevant part:
2. '* * * assume that a farmer has a herd of hogs. Each year he selects certain young to be bred. After each sow has one litter, she is turned out to be conditioned for slaughter. The profits on the sale of the pigs unbred are taxable as ordinary income. But the profits on the sale of the pigs bred once are taxable as capital gains. They have been held as business properties producing other pigs. The fact that all the pigs are equally destined to be sold and eaten is unimportant.' Eisenstein, The Idelogies of Taxation 174 (1961).