Carasso v. CIR
| Citation | 292 F.2d 367 |
| Decision Date | 14 July 1961 |
| Docket Number | Docket 26817.,No. 420,420 |
| Parties | Max and Fannie CARASSO, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Martin D. Cohen (of Cohen, Rosenbaum & Scher), Newark, N. J., for petitioners.
Joseph Kovner, Atty., Dept. of Justice, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson and I. Henry Kutz, Attys., Dept. of Justice, Washington, D. C., on the brief), for respondent.
Before CLARK and SMITH, Circuit Judges, and DAWSON, District Judge.
This is an appeal from a Tax Court decision (1960, 34 T.C. 1139) determining a deficiency in taxpayer's income tax for the year 1956. The deficiency arose as a result of disallowance by the Commissioner of certain claimed medical deductions, to wit: amounts spent for food and lodging by petitioners while on a medical convalescence trip to Bermuda. The following facts, as set forth by the Tax Court, are undisputed by the parties:
Petitioners, husband and wife, reside in Brooklyn, New York, and filed their 1956 Federal joint income tax return with the District Director of Internal Revenue at Brooklyn.
In early February, 1956, while in Burlington, Vermont, on business for his employer, petitioner Max Carasso was stricken with a serious illness that resulted in two emergency operations, in which the major portion of his stomach was removed. He was hospitalized in Burlington, Vermont, during the period February 5, 1956, through February 22, 1956. He lost 50 pounds in weight. Upon being released from the hospital he was unable to go home because of his weakened condition, and remained at the house of some friends for a brief period, after which he finally returned to Brooklyn. However, his weakness persisted, and on March 6, 1956, on his doctor's recommendation he flew to Bermuda, accompanied by his wife, for further convalescence. He remained there for 9 days. Upon returning to Brooklyn he convalesced further for at least 6 more weeks, and when he thereafter returned to work, it was only on a part-time basis.
Included in the medical expenses claimed in the return was a total of $493.50 incurred in the Bermuda trip for both petitioner and his wife. These expenses were included in the amount of $628.50 disallowed by the Commissioner.
The Tax Court found the following facts:
The Bermuda trip was undertaken solely for medical reasons; it was in no sense a vacation trip. Petitioner's condition was such that he could not have made the trip alone, and his wife's presence and assistance were essential. Many of the services performed by her were such as might have been performed by a nurse.
The $493.50 expenses incurred in connection with the Bermuda trip were composed of the following items:
Hotel .................. $108.00
Fare .................. 217.80
Meals .................. 162.00
Exit tax ............... 5.70
_______
$493.50
The Tax Court disallowed the two items for "Hotel" and "Meals."
It is noted that the Tax Court found "the Bermuda trip was undertaken solely for medical reasons." There is no claim made that the trip was anything other than a medical necessity prescribed by taxpayer's physician.
The specific question before the court, therefore, is whether the expenses incurred by taxpayer for food and lodging during a trip concededly prescribed for medical reasons are properly deductible as medical expenses under the Internal Revenue Code of 1954.
Consideration of this question must start with reference to section 262 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 262, which provides:
Petitioners contend that under similar provisions in the Internal Revenue Code of 1939, both travel expenses and amounts spent for board and lodging incidental to a trip prescribed for medical reasons were deductible.
Section 23(x) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 23(x), contained essentially the same provisions as those found in section 213 of the Internal Revenue Code of 1954, except that it did not include the provision allowing a deduction "for transportation primarily for and essential to medical care." Although not specifically spelled out in the statute, the section was interpreted to include both travel expenses and amounts spent for food and lodging incidental to a trip necessary and prescribed for medical reasons. L. Keever Stringham, 1949, 12 T.C. 580, affirmed, Stringham v. Commissioner of Internal Revenue, 6 Cir., 1950, 183...
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