Bilder v. Comm'r of Internal Revenue, Docket No. 71548.

• Citation: 33 T.C. 155
• Decision Date: 26 October 1959
• Docket Number: Docket No. 71548.
• Parties: ROBERT M. BILDER AND SALLY L. BILDER, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: United States Tax Court

33 T.C. 155

ROBERT M. BILDER AND SALLY L. BILDER, PETITIONERS,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 71548.

Tax Court of the United States.

Filed October 26, 1959.

Martin D. Cohen, Esq., for the petitioners.

Chapman H. Belew, Esq., for the respondent.

The petitioner, a hyperkinetic person with an unusual inner stress and tension and who had suffered recurrent myocardial infarctions due to atherosclerotic heart disease was advised by his physician to spend the winter months in a warm climate. Pursuant to such advise the petitioner in 1954 and 1955 went from his home in New Jersey to Florida where he spent the winters. Held, that the petitioner's individual traveling expenses between his home and Florida and his individual housing expenses while in Florida were properly deductible as medical expenses under section 213, I.R.C. 1954. Held, further, that the housing expenses of the petitioner's wife and daughter who accompanied him to and remained with him while he was in Florida are nondeductible personal living expenses.

WITHEY, Judge:

For the years 1954 and 1955 the Commissioner determined deficiencies in the income tax reported by petitioners in the respective amounts of $450 and $281.90. By amended answer, respondent claims increased deficiencies in the respective amounts of $75.76 and $84.90. The issues for decision are (1) whether rental paid for a Florida apartment is a deductible medical expense and (2) whether transportation expense to Florida is a proper medical expense deduction.

FINDINGS OF FACT.

Some of the facts have been stipulated and are found accordingly.

Petitioners are husband and wife who reside in Mountainside, New Jersey, and filed their joint income tax returns for 1954 and 1955 with the district director of internal revenue at Newark, New Jersey. Hereinafter, unless otherwise indicated, petitioner has reference to the husband, Robert M. Bilder.

Petitioner was born March 14, 1911. He is a member of a Newark law firm. Since the age of 35 he has suffered four heart attacks each resulting in a myocardial infarction. That term means that muscular tissue of the heart has become necrotic due to a lack of sufficient blood circulation. The failure of blood to circulate through petitioner's heart muscle tissue was in each instance the result of a coronary occlusion. That terms means a closing or narrowing of an artery feeding blood to the heart tissue to such an extent that insufficient or no blood may pass to such tissue to nourish it. In petitioner's case, as is true generally, upon the occurrence of each such event other blood vessels already in existence and newly developed vessels gradually took over the burden of providing the blood supply for that portion of his heart muscle which remained alive and still functioning after each attack. Accepted as proper treatment by eminent heart specialists, at least in the United States, is the advice to such patients as petitioner that, if they live in a cold climate, they are to remain indoors or hospitalized during the winter months or, in the alternative, spend the winter months in a warm climate. The latter alternative advice was given petitioner by one of the most eminent heart specialists in the United States if not the world. This advice was given him because of his personality characteristics. He is and was at the time the advice was given a hyperkinetic person with an unusual inner stress and tension. To confine him either at home or a hospital in the relatively cold climate of New Jersey throughout the winter months would have resulted in danger to his health from two sources. Such extended inactivity would have increased his inner stress and tension, which are medically accepted as tending to cause the recurrence of heart attacks in one who has previously suffered one or more such incidents. Mild exercise of the type not available while confined to home or hospital is required for such a person and was for petitioner in order that new vascular passages for blood to the heart may more readily and quickly develop.

Subsequent to such advice, petitioner, his wife, and child traveled from their home in New Jersey to Fort Lauderdale, Florida, in December of 1953. From January 1, 1954, to March 24, 1954, they lived there in a rented apartment paying a total rent for the period of $1,500. Petitioner chose Fort Lauderdale and the apartment for the following reasons:

The specific disease from which petitioner suffers is atherosclerosis. The objective of the medical treatment accorded him was therefore the prevention of the clotting of his blood and the prescribing of Dicumerol, an anticoagulant drug, to that end. The objective of the advice given him as part of the treatment of his disease, concerning his conduct of his way of life, was that he should live under such conditions that he could obtain the proper exercise to the end that he might develop sufficient coronary blood vessel capacity to properly nourish what remains of his heart muscle tissue. The primary objective of all his treatment and the advice given incidental thereto was the prevention of any further myocardial infarction with resulting impairment or destruction of the functioning of his heart, thus prolonging his life. Fort Lauderdale climate accords with this advice. Dicumerol, in 1953, was not widely used in the treatment of heart disease and relatively few doctors were competent to use it for that purpose. Because the drug prevents the natural tendency of human blood to clot, its use is attended by grave danger of hemorrhage unless doctors and hospitals competent to control the dosage and measure the level of the drug in the blood of the patient are readily available. One of the few doctors in Florida then competent to supervise petitioner's use of the drug was in Fort Lauderdale. Petitioner's apartment was in close proximity to one of the few hospitals then able to test petitioner's blood to determine the correct dosage of Dicumerol. Petitioner has resided in Fort Lauderdale during the winter months each year since 1953 and has been under the care of the same doctor during those months of each year. The doctor examines petitioner at least weekly and upon occasion oftener when required in order to maintain the proper percentage of Dicumerol in his blood.

On December 15, 1954, petitioner and his family again returned to Fort Lauderdale and until February 10, 1955, lived in the same apartment at a rental for the period of $829. On the latter date petitioner and his family moved to a house he had purchased in that city. On April 15, 1955, they returned to Newark where petitioner resumed his law practice.

While in Florida during 1954 and 1955 petitioner taught school at a salary of $50 per week. During such periods, by agreement with other members of his Newark law firm, although he continued to share in its profits, petitioner forfeited a $150 weekly drawing account therefrom. The move to Florida each winter for such an extended period with its attendant disruption of petitioner's Newark household and the necessity that their daughter be taken from one school and placed in another constituted a burden upon the family. Their sojourns in Fort Lauderdale during the years at issue were not vacations; they were taken as a medical necessity and as a primary part of necessary medical treatment of a disease from which petitioner was and still is suffering.

It is stipulated and found that the cost of petitioner's individual transportation...