Rose v. Commissioner, Docket No. 2052-68.

• Decision Date: 02 January 1973
• Docket Number: Docket No. 2052-68.
• Citation: 1973 TC Memo 1,32 TCM (CCH) 1
• Parties: Robert M. Rose and Doris D. Rose v. Commissioner.
• Court: U.S. Tax Court

32 TCM (CCH) 1

1973 TC Memo 1

T.C. Memo. 1973-1.

Robert M. Rose and Doris D. Rose v. Commissioner.

Docket No. 2052-68.

United States Tax Court.

Filed January 2, 1973.

Robert M. Rose, pro se, 1520 Louisiana Ave., New Orleans, La. Bruce A. McArdle, for the respondent.

Memorandum Findings of Fact and Opinion

SIMPSON, Judge:

The respondent determined deficiencies in the petitioners' Federal income tax of $1,445.91 for 1965 and $1,535.40 for 1966. The issues for decision are: (1) Whether the petitioners are entitled to deduct amounts expended for the lodging and maintenance of Mrs. Rose and their daughter as medical expenses, (2) whether the petitioners are entitled to deduct as medical expenses certain travel, telephone, and automobile repair expenses allegedly incurred with respect to their daughter's illness, and (3) whether the petitioners expended more for medicine and drugs than the amount determined in the deficiency notice.

Findings of Fact

The petitioners, Robert M. and Doris D. Rose, are husband and wife. At the time the petition was filed in this case, Dr. Rose resided in Metairie, Louisiana, and Mrs. Rose resided in Sarasota, Florida. They filed their joint Federal income tax returns for the years 1965 and 1966 with the district director of internal revenue, New Orleans, Louisiana.

Suzanne Rose, the petitioners' daughter, was born in 1954. Prior to 1964, she had suffered from occasional minor attacks of asthma. During July and August 1964, she had several severe asthmatic attacks and was hospitalized four times. Her condition was diagnosed as one of severe bronchial asthma, and it was discovered that Suzanne was also suffering from a bronchial infection, which aggravated her asthma.

Furthermore, sensitivity tests given to Suzanne revealed that she was allergic to house dust. Considering this allergy to be a likely cause of Suzanne's respiratory difficulty, her doctors began a program of desensitizing injections for the purpose of immunizing her from the offending allergens and advised the petitioners to keep Suzanne's bedroom as free from house dust as possible. To this end, Dr. Rose washed and repainted the walls of Suzanne's room, and removed the window draperies and much of the furniture. A new vinyl flooring was also laid down over the old flooring which had cracks that could act as a haven for dust particles.

In spite of Dr. Rose's efforts, Suzanne's condition did not improve when she stayed at home. It was felt that the desensitizing program would not be effective, if at all, for a long time, and her physicians advised that she be taken to Destin, Florida, for a change of climate. Suzanne and her mother went to Destin and stayed in a motel. It was possible to keep the motel room relatively free from dust since there were only a few articles of furniture, most of which were upholstered with a plastic material.

Suzanne returned to New Orleans to begin the fall term of school, and through December 1964, she missed only 4 days of school. On account of the dust in the Rose house, it was decided to rent an apartment for Mrs. Rose and Suzanne. The apartment was chosen because it was on a floor high above the ground and because its location provided ready access to the hospital, in case Suzanne should have a severe asthmatic attack. Suzanne and her mother lived in the apartment until sometime in December 1964.

Suzanne's rooms in Destin and New Orleans were very similar. Both contained minimal furniture so as to limit the amount of dust. The pillows and mattresses were covered with allergenic covers, and Suzanne's drugs were kept in the room. The only pieces of medical equipment in the rooms were an air compressor (which was purchased from Sears, Roebuck and Company for about $32), a portable, self-contained nebulizer or vaporizer (which retailed for about $18), and a syringe for administering drugs. The air compressor and nebulizer are widely used by asthmatics in their homes for producing a fine mist for the purpose of inhalation, and Suzanne possessed a pocket-size nebulizer, which she carried with her for use when away from home.

From October 16, 1964, through December 23, 1964, Suzanne, twice weekly, was treated by an allergy specialist. At each visit, Suzanne received desensitizing injections, the last of which caused a severe reaction resulting in hemorrhage spots all over her body and a large area of hemorrhage at the place of injection. It was, therefore, determined by her doctor that she should not receive any further injections. Following the advice of Suzanne's doctors, Suzanne and Mrs. Rose flew to Phoenix, Arizona, on December 29, 1964. They stayed in a motel until early in January 1965, when Dr. Rose arrived. At that time, the family drove to Tucson, Arizona, and Mrs. Rose and Suzanne rented a cottage at the Desert Trail Ranch. After Dr. Rose returned to New Orleans on January 17, 1965, Mrs. Rose and Suzanne remained at the ranch where they resided until sometime in May 1965. While living in Tucson, Suzanne was an out-patient at a local clinic. During such time, she was never hospitalized as a result of an attack of asthma, but she was hospitalized in April 1965 for studies to determine whether she had a cardiac defect. She had no such defect. During April 1965, Dr. Rose visited his wife and Suzanne in Tucson.

Suzanne's doctors in Arizona believed that the moist air of the Florida coastal areas would be more beneficial to Suzanne than the dry Arizona air. Therefore, Mrs. Rose and Suzanne moved to Sarasota, Florida, where they have continued to reside except for a brief stay in Key West, Florida, and yearly trips to New Orleans. Each such trip to New Orleans has resulted in an aggravation of Suzanne's illness. While in Florida, Suzanne was neither hospitalized nor confined to bed for any extended period of time, and she attended school in Sarasota during the 1965-1966 and 1966-1967 school years without any substantial absence.

Suzanne's rooms in both Tucson and Sarasota were nearly identical. They were stripped of rugs and curtains, and the furniture in the rooms consisted of a bed, a chair, and a night stand. Allergenic covers, which may be purchased in a department store, were placed on her mattress and pillows, and Suzanne's drugs were kept on the night stand. The only pieces of medical equipment in the rooms were the air compressor (which had been purchased from Sears, Roebuck and Company), the portable, self-contained nebulizer, and a syringe for administering drugs.

During 1964, and apparently 1965 and 1966, Mrs. Rose performed a limited amount of activities in the nature of nursing services. Her primary responsibility in this regard was giving Suzanne intramuscular injections of various medicines by syringe. This task, the requisite techniques of which can be learned in a few minutes, was particularly easy for Mrs. Rose because Dr. Rose, many years prior to 1964, had taught her to give him injections. Also, during 1964, as well as during 1965 and 1966, Mrs. Rose, on occasion, aided Suzanne in the operation of her compressor and nebulizer. Mrs. Rose had no special or professional training as a nurse.

During 1965 and 1966, Dr. Rose and his son lived in New Orleans, and Dr. Rose's expenses in maintaining his New Orleans household during this time were substantially the same as when his wife and Suzanne resided in New Orleans.

On their Federal income tax return for 1965, the petitioners deducted as medical expenses $5,300.00 for the maintenance of Mrs. Rose and Suzanne in Tucson and in Sarasota, $950.00 for travel expenses incident to Suzanne's illness, and $167.36 for long-distance telephone calls "re Daughter's treatment." They also claimed expenditures of $411.50 for drugs and medicine in 1965, of which $350.46 was attributable to Suzanne. On their Federal income tax return for 1966, the petitioners deducted as medical expenses $4,800.00 for the maintenance of Mrs. Rose and Suzanne in Sarasota, $58.58 for long-distance calls, $27.02 for repairs to Mrs. Rose's car, and $360.00 for travel between New Orleans and Sarasota. They also claimed expenditures of $237.91 for drugs and medicine, of which $187.18 was attributable to Suzanne.

In his deficiency notice, the respondent disallowed the maintenance and telephone expenses for 1965 and 1966. He also disallowed $832.50 for the travel expenses for 1965, all of the travel expenses for 1966, and the car repair expense for 1966. He allowed an increase in the drug and medicine deduction for 1965 of $263.75 and an increase for 1966 of $142.56.

Opinion

The issues to be decided are: (1) Whether the petitioners are entitled to deduct amounts expended for the lodging and maintenance of Mrs. Rose and their daughter as medical expenses, (2) whether the petitioners are entitled to deduct as medical expenses certain travel, telephone, and automobile repair expenses allegedly incurred with respect to their daughter's illness, and (3) whether the petitioners expended more for medicine and drugs than the amount determined in the deficiency notice.

The costs of meals and lodging are ordinarily personal expenses, and section 262 of the Internal Revenue Code of 1954¹ denies a deduction for personal expenses, except as otherwise provided. Section 213 allows a limited deduction for the expenses of medical care. Under section 23(x) of the Internal Revenue Code of 1939, the predecessor of section 213, the costs of meals and lodging incidental to a trip necessary and prescribed for medical reasons were deductible expenses for medical care. See L. Keever Stringham Dec. 16,916, 12 T.C. 580 (1949), affd. per curiam 50-2 USTC ¶ 9367 183 F. 2d 579 (C.A. 6, 1950). However, in connection with the enactment of section 213, the committee reports state:

Subsection (e) defines medical care to mean amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of diseases or for the purpose of affecting any structure or function of the

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