Mays v. Bowers, 6527.

• Decision Date: 31 January 1953
• Docket Number: No. 6527.,6527.
• Citation: 201 F.2d 401
• Parties: MAYS v. BOWERS.
• Court: U.S. Court of Appeals — Fourth Circuit

201 F.2d 401 (1953)

MAYS v. BOWERS.

No. 6527.

United States Court of Appeals Fourth Circuit.

Argued January 8, 1953.

Decided January 31, 1953.

John H. Lumpkin, Columbia, S. C. (Boyd, Bruton & Lumpkin, Columbia, S. C., on the brief), for appellant.

Harry Marselli, Sp. Asst. to Atty. Gen. (Charles S. Lyon, Asst. Atty. Gen., Ellis N. Slack and Morton K. Rothschild, Sp. Assts. to Atty. Gen., Ben Scott Whaley, U. S. Atty., Charleston, S. C., and Claud N. Sapp, Jr., Asst. U. S. Atty., Columbia, S. C., on the brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal by the representative of a deceased taxpayer and involves the right of the taxpayer who had been elected to office to deduct his campaign expenses in income tax returns in which the salary of the office was returned as income. The taxpayer Fred L. Mays in May 1946 was elected to the City Council of Columbia, S. C., a position carrying a salary of $4,000 per year. In the course of his campaign for the office he incurred and paid expenses amounting to $2,355.31, including the cost of a barbecue, the hire of automobiles to carry voters to the polls and amounts paid poll watchers as well as a $500 entrance fee and the cost of newspaper and radio advertising. For the portion of the year 1946 he returned as income received from salary $2,333.34 and for the year 1947 the full salary of $4,000. Plaintiff contends, not that the campaign expenses are deductible in the year when paid as ordinary and necessary business expenses, but that they should be amortized over the term of office to which the taxpayer was elected and a ratable portion be deducted from the salary of the office for each year of the term.

We agree with the judge below D.C., 106 F.Supp. 337, that there is nothing in the tax law which authorizes the deductions claimed. It is well settled that deductions from gross income are a matter of grace and that "a taxpayer seeking a deduction must be able to point to an applicable statute and show that he comes within its terms". New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 790, 78 L.Ed. 1348. Not only is there no authority for any such deduction as is here claimed to be found within the law, but the Supreme Court has expressly decided that campaign expenses are not deductible from income. McDonald v. Commissioner, 323 U.S. 57, 65 S.Ct. 96, 97, 89 L.Ed. 68. It is true that in the case cited the taxpayer was defeated in the election, whereas the taxpayer here was elected and received the salary of the office; but the reasoning of the court in denying the deduction is as applicable to this case as to that. The court said:

"`All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business\' are allowed by § 23(a)(1) (A) as deductions in computing net income. According to tax law terminology (§ 48(d) of the Internal Revenue Code) the performance by petitioner of his judicial office constituted carrying on a `trade or business\' within the terms of § 23 of the Internal Revenue Code. He was therefore

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