Cross v. United States
| Decision Date | 08 October 1963 |
| Citation | 222 F. Supp. 157 |
| Parties | Ephraim CROSS and Mary Cross, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Stanley Faulkner, New York City, for plaintiffs.
Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, for defendant; Clarence M. Dunnaville, Asst. U. S. Atty., of counsel.
Zelman & Zelman, New York City, for Teachers' Union of City of New York, as amicus curiae, Benjamin M. Zelman, New York City, of counsel.
Miller, Montgomery & Spalding, New York City, for The Modern Language Assn. of America, as amicus curiae, William C. Porth, New York City, of counsel.
Plaintiffs move for summary judgment in an action for the recovery of that part of their income tax for the year 1954 alleged to have been erroneously or illegally assessed or collected. 28 U.S.C. § 1346(a) (1); Fed.R.Civ.P. 56.
The action and this motion involve the deductibility of expenses of a visit in Europe by a college professor of languages. Internal Revenue Code of 1954, § 162(a); Regulations, 26 C.F.R. § 1.162-5.
The cited Code provision allows as a deduction "ordinary and necessary expenses" of a "trade or business".
The cited part of the Income Tax Regulations allows the deduction of expenses for the taxpayer's "education" if such education is "undertaken primarily for the purpose of:
Plaintiffs are husband and wife who filed a joint return for 1954 but the deduction claimed is for expenses of the husband alone; he will be referred to sometimes as "the plaintiff".
Dr. Cross, the plaintiff, was in 1954 an Assistant Professor at City College in New York, teaching French, Spanish and romance linguistics (which means the study of the development of Latin into the romance languages and the dialects and historical stages of those languages — Portuguese, Spanish, French, Italian and Romanian). He continued at City College after 1954 and later became a full professor.
Dr. Cross was educated entirely in New York City; he has the degree of Doctor of Philosophy from Columbia University. He has been teaching foreign languages in the United States for some fifty years and has been teaching languages at City College since 1931. While not specifically stated in the record, it is assumed that Dr. Cross was born in the United States. He had been to Europe many times before 1954 but had never been to school in Europe.
It appears without contradiction that Dr. Cross and his wife sailed for Europe on June 30, 1954 on a French flag freighter; the ship called at ports in Portugal, Morocco, Algeria, and Italy; that after 21 days the voyage ended at Marseilles in France, where plaintiff and his wife then took separate paths; plaintiff stayed in France and did not rejoin his wife until after his return to New York on September 23, 1954 on a French flag passenger ship; that on his trip in 1954 plaintiff visited in each country theatres, movies, restaurants, cafes, law courts, churches, schools, etc.; that plaintiff read newspapers and talked to students, teachers and others, attended political meetings, and listened to radio broadcasts, including political speeches; that on his trip plaintiff bought many books in the various romance languages and had them sent home for his teaching library; and that plaintiff arranged for and had many discussions on his trip with book publishers about books in the various languages of the countries visited.
City College withheld $1142.40 from plaintiff's salary in 1954 in respect of income tax to the United States for that year.
When the two plaintiffs filed an income tax return for the year 1954 the amount of $1300 was deducted as expenses for the summer trip of Dr. Cross.
Since the withholding had not given effect to such deduction, plaintiff filed claim for a refund. Int.Rev.Code 1954, §§ 6401, 6402, 7422; Regs., 26 C.F.R. § 30.6402-2.
The refund claim having been denied, this action was commenced. 28 U.S.C. § 1346, 26 U.S.C. § 7422.
The amount of refund claimed is $519.62, said to be the difference between the tax due without the $1300 deduction (that is, the amount of tax actually withheld) and the lower tax due if the deduction is allowed.
There is no substantial controversy as to the facts set forth above.
There is also no genuine issue as to the fact that a teacher of foreign languages must, in order to maintain or improve his skill, spend some time periodically in the countries where the languages are used which he teaches here. This seems so evident as to be virtually a proper subject of judicial notice, but plaintiff submits affidavits from a number of distinguished language teachers establishing the fact. The Government submits nothing to the contrary and under General Rule 9(g) of this Court has admitted the statement of movant that such a visit as he made was considered "necessary and ordinary for him or any language teacher in order to maintain or improve his skills as a teacher of foreign languages and linguistics". In this connection, it is not without significance that the Congress has recognized that a wide speaking knowledge of modern foreign languages is essential to the national welfare and defense; in the National Defense Education Act of 1958, authority was given for the operation of foreign language centers outside the United States (20 U.S.C. § 511).
This kind of visit to foreign countries would seem to be necessary even where the teacher was born in the foreign country whose language he teaches. Where, as here, the language teacher has been born in the United States and educated here it is all the more necessary for him from time to time to hear the language spoken in its own country.
No living language remains static; the fact that it is living means that it constantly changes. In this connection, the striking expression of Mr. Justice Holmes may be remembered:
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is...
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Cross v. United States, 466
...deposition of Professor Cross, concluded that there was no genuine issue as to any material fact, and granted appellees' motion. 222 F.Supp. 157 (S.D.N.Y.1963). The Government opposed the summary judgment procedure, claiming a right to cross-examine appellees as to the nature of their expen......
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Stanley v. Comm'r of Internal Revenue , Docket No. 3817-69SC.
...Cross v. United States, 250 F.Supp. 609, 613 (S.D.N.Y. 1966), on remand from 336 F.2d 431 (C.A. 2, 1964), which had reversed 222 F.Supp. 157 (S.D.N.Y. 1963).2 It appears to us that section 1.162-5(c) has been administratively and judicially rescinded with respect to educational travel by te......
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Cross v. United States
...to have been expended by plaintiff on a trip to Europe during the summer of 1954. Summary judgment for plaintiff was granted, 222 F.Supp. 157 (S.D.N.Y. 1963). The Court of Appeals reversed, 336 F.2d 431 (2nd Cir. 1964). The case came on for trial before this court, sitting without a jury. N......