Goldman v. CIR

• Decision Date: 30 May 1974
• Docket Number: No. 73-2079.,73-2079.
• Citation: 497 F.2d 382
• Parties: Alvin L. GOLDMAN and Elisabeth C. Goldman, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

497 F.2d 382 (1974)

Alvin L. GOLDMAN and Elisabeth C. Goldman, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.

No. 73-2079.

United States Court of Appeals, Sixth Circuit.

Argued April 8, 1974.

Decided May 30, 1974.

Alvin L. Goldman, pro se.

Jonathan S. Cohen, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Bennet N. Hollander, Arthur L. Bailey, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief; Lee H. Henkel, Chief Counsel, Internal Revenue Service, Washington, D. C., of counsel.

Before PHILLIPS, Chief Judge, EDWARDS and McCREE, Circuit Judges.

PHILLIPS, Chief Judge.

Mr. and Mrs. Alvin L. Goldman (taxpayers) appeal from an adverse decision of the United States Tax Court, upholding the Commissioner's determination of a $150.50 deficiency in taxpayers' 1968 joint federal income tax return. We affirm.

For a comprehensive statement of the facts, reference is made to the opinion of Judge Irene E. Scott. T. C. Memo 1973-132.

Mr. Goldman, a law professor at the University of Kentucky, located in Lexington, Kentucky, took a year's leave of absence beginning in August 1967 to join the staff of a member of the National Labor Relations Board in Washington, D. C. Mr. Goldman moved his wife and child to Washington where the family resided for approximately one year. In August 1968, the family returned to Lexington where Mr. Goldman resumed his professorial duties.

On their joint income tax return for 1968, taxpayers claimed deductions under § 162(a)(2) of the Internal Revenue Code of 1954, 26 U.S.C. § 162(a) (2), in the amount of $2,469.72 for travel expenses incurred while temporarily "away from home" in pursuit of a trade or business. Most of these deductions were for expenses incurred while in Washington, e. g., lodging for seven and a half months during 1968 at $200 per month, meals for Professor Goldman (34 weeks at $21 per week), etc. The Commissioner allowed all of these claimed deductions.

In addition, taxpayers also claimed a deduction on their 1968 return of $726.75 for the expenses of moving from Washington back to Lexington. Taxpayers asserted that these moving expenses were deductible under § 217(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 217(a), as moving expenses paid in commencement of employment "at a new principal place of work." The Commissioner disallowed all of these claimed expenses except $82.30, which amount represented Mr. Goldman's separate travel expenses on the trip from Washington to Lexington.

Thereafter, the Commissioner asserted a deficiency of $152.38, and the taxpayers initiated this action in the Tax Court. Judge Scott rejected the contentions of the taxpayers but, consistent with a concession of the Commissioner with respect to Mr. Goldman's actual travel expenses from Washington to Lexington, reduced the deficiency to $150.50.

On appeal to this court, taxpayers make two contentions: 1) They should be permitted to deduct under § 217 their personal and family moving expenses incurred in returning from Washington to Lexington. 2) If those moving expenses are not deductible under § 217, then that portion of those expenses which are attributable to Mr. Goldman should be deductible as "away from home" travel expenses under § 162(a)(2). We reject both contentions.

Section 1.217-1(c)(3)(iii), Income Tax Reg., which squarely governs disposition of this case, provides as follows:

"In general, a place of work is not considered to be the taxpayer\'s principal place of work for purposes of this section if the taxpayer maintains an inconsistent position, for example, by claiming an allowable deduction under section 162 (relating to trade or business expenses) for traveling expenses `while away from home\' with respect to expenses incurred while he is not away from such place of work and after he has incurred moving expenses for which a deduction is claimed under this section."

In Schweighardt v. Commissioner, 54 T. C. 1273 (1970), the Tax Court, per Judge Scott, specifically upheld this regulation.

Congress has delegated to the Commissioner the responsibility for prescribing "all needful rules and regulations for the enforcement" of the Internal Revenue Code. 26 U.S.C. § 7805(a). When, as here, Congress has expressly delegated authority to the Commissioner to promulgate regulations under a specific Code section, the resulting legislative regulations are accorded even greater weight than that normally accorded interpretative regulations. 1 Mertens, Law of Federal Income Taxation, § 3.20, at 41 (Rev. ed. 1969).

Section 1.217-1(c)(3)(iii) of the regulations is consistent with § 217 of the Code and its underlying congressional purpose. The regulation, in effect, provides that taxpayer's employment at a new location be on a permanent or indefinite basis and not merely temporary in order to meet the "new principal place of work" requirement of ...