United States v. Le Blanc

• Decision Date: 17 May 1960
• Docket Number: No. 18053.,18053.
• Citation: 278 F.2d 571
• Parties: UNITED STATES of America, Appellant, v. Elmire L. LE BLANC et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

278 F.2d 571 (1960)

UNITED STATES of America, Appellant, v. Elmire L. LE BLANC et al., Appellees.

No. 18053.

United States Court of Appeals Fifth Circuit.

May 17, 1960.

Morton K. Rothschild, Atty., Dept. of Justice, Charles K. Rice, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept. of Justice, Lloyd Cyril Melancon, Asst. U. S. Atty., New Orleans, La., Robert N. Anderson, Atty., Dept. of Justice, Washington, D. C., M. Hepburn Many, U. S. Atty., New Orleans, La., for appellant.

Amos L. Ponder, Jr., Edw. J. Boyle, Clem H. Sehrt, Ponder & Ponder, New Orleans, La., Aubert D. Talbot, Napoleonville, La., for appellees.

Before CAMERON, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

Fifteen years ago the Supreme Court momentarily considered that it should, and would, determine whether "home" was really home, or whether it was the taxpayer's regular place of business employment insofar as income tax deductions for travel expense were concerned. Decision of that question in that case was avoided by placing decision on another ground. Commissioner of Internal Revenue v. Flowers, 1945, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203.¹ Thirteen years later the Court again bypassed this and related questions when it affirmed the Court of Appeals on the factual issue of "temporary" or "indefinite-indeterminate" absence under the so-called "exception" to Flowers. Peurifoy v. Commissioner, 1958, 358 U.S. 59, 79 S.Ct. 104, 3 L.Ed.2d 30.² Now perhaps the question so long and deliberately deferred by the Supreme Court is again sharply posed. It may be ironic that if that comes to pass, the conflict will again be between the Fourth Circuit and the Fifth Circuit. More unique, it may still be over Barnhill v. Commissioner, 4 Cir., 1945, 148 F.2d 913, 159 A.L.R. 1210, which was at odds with our original Flowers case, Flowers v. Commissioner, 5 Cir., 1945, 148 F.2d 163, and precipitated the grant of certiorari in that case. Claunch v. Commissioner, 5 Cir., 1959, 264 F.2d 309. For Barnhill involved Justices of the Supreme Court of North Carolina and held that travel expenses were not there deductible. Here we deal with Justices of the Supreme Court of Louisiana and our conclusion is that such expenses are deductible.

In reaching this conclusion, which we affirm, the District Court dealt with virtually undisputed facts.³

The Taxpayer was Justice Samuel LeBlanc, since deceased. The case concerns two tax years (1950 and 1951) during his tenure as Associate Justice from December 1949 down to the date of his retirement in December 1954. The precise question is whether he was entitled to deduct as traveling expenses while away from "home" under § 23(a) (1) (A) of the 1939 Code,⁴ the rental of an apartment in New Orleans occupied by him and his wife during the time he was in attendance on the Supreme Court and therefore unable to continue living in his long established home at Napoleonville some distance away.

For our purposes, the facts may be severely compressed. Napoleonville is a small Louisiana community located in the Parish of Assumption approximately 75 miles from New Orleans. Samuel LeBlanc was born there and it was there where nearly every significant event of his life occurred. In 1912 he was married to Mrs. LeBlanc who survives him and is a party to this cause. There they raised a family of four surviving children. Mr. LeBlanc,⁵ engaged in the active practice of the law and there maintained an office and well equipped library. In addition to his professional practice, he owned considerable personal property and real estate, including his family home. He was financially interested and active in a plantation operation and had other local business interests. He was engaged actively in and identified as a member of his local church parish, civic organizations and social clubs. There he maintained his sole bank accounts, and all of his banking was done in Napoleonville. The family traded for some things with the small merchants of that community, but the LeBlanc family had long looked to mercantile and similar establishments located in New Orleans for their principal needs. He was thus, until 1949 at least, a lifelong actual resident and citizen and a qualified elector in the Parish of Assumption. In every respect, actual and legal, this was his home.

Came then 1949. Did Mister LeBlanc's home become something less for Judge LeBlanc? Certainly not in fact. He and his wife continued to maintain the family home in Napoleonville. It was kept open, was equipped with all facilities, and all utilities were kept connected. Except for unusual and infrequent circumstances, Judge and Mrs. LeBlanc left New Orleans and spent every week end during the court term at the residence in Napoleonville. During the summer months of July, August and September when the court was not in active session, life went on at Napoleonville exactly as it had before his accession to the bench.

Nor was there anything about the existence in New Orleans which made Napoleonville any less his home. True, the Judge and Mrs. LeBlanc lived in an apartment. But this was only occupied when the Judge had to be in New Orleans in attendance upon the court during its sessions. When court work requiring attendance in New Orleans was finished each week, back to Napoleonville they went. So, too, did they when court recessed during the summer months. The apartment served merely as a place for the Judge to stay as would a hotel.⁶ And the meals prepared or eaten there were, to the Judge's good fortune, a happy substitute for that obtained by itinerant judges in public restaurants.

No question is, nor on this record may be raised, on the reasonableness of the expenditures. The Commissioner, to be sure, in determining reasonableness of the infinite variety of things now having a tax incidence, has an awesome review in the most intimate phases of a taxpayer's business, personal and social life. But he would hardly say that a Justice had to stay in a hotel; that he could have one room, but not two. An apartment was, therefore, the only practicable alternative to hotel life.⁷ And in New Orleans, this record affirms without contradiction that it was necessary to lease for a whole year to obtain an apartment for the nine-month court term.

The apartment was but a place to stay. It was, of course, a place where the Judge spent a lot of time.⁸ And it may even have been a comfortable place to stay. But it was not home and nothing about it or their life in New Orleans compelled, or even permitted, the conclusion that this was home. The question is, then: did the tax law make it one? Or, in any event, were these expenditures sufficiently related to the business of judging⁹ as to be deductible?

The Government's theory — which in a scatter gun approach finally contends that the expenses are not deductible without precisely defining the reasons — seems to be that since Judge LeBlanc's work required that he spend three-fourths of the year in New Orleans, this was where he really lived, the apartment was his home, and the maintenance of the dual residence at Napoleonville was one merely from his own personal choice unrelated to his business as a Judge. This latter was essentially the holding in Commissioner of Internal Revenue v. Flowers, 326 U.S. 465, 66 S.Ct. 250, 90 L.Ed. 203, and it has found colorful, but helpful, voice in handy apothegms which we and others have uttered or echoed. "The job, not the taxpayer's pattern of living, must require the travel." Carragan v. Commissioner, 2 Cir., 1952, 197 F.2d 246, 249. Traveling expenses which "arise from the taxpayer's choice not to bring his home close to his place of work" are not deductible. O'Toole v. Commissioner, 2 Cir., 1957, 243 F.2d 302, 303. The "Supreme Court has steadfastly refused to say that traveling expenses are incurred in the pursuit of business when they stem from the taxpayer's refusal to bring his home close to his job." Carragan v. Commissioner, 2 Cir., 197 F.2d 246, 249, quoted by us in Hammond v. Commissioner, 5 Cir., 1954, 213 F.2d 43, 44.

But the fact — and here we mean the Louisiana legal-fact — is that Judge LeBlanc had no choice about Napoleonville. He was required to maintain a home there. Neither did he have any choice about New Orleans. Louisiana did not compel him to live there, but he was commanded to work there. The Commissioner does not, nor could he, contend that the Judge was compelled to make the round trip by private automobile each court day to and from Napoleonville and New Orleans so as to make him a commuter.¹⁰ If, as we have stated, he was required to live in Napoleonville and work in New Orleans, it was most certainly "the exigencies of business," Peurifoy v. Commissioner, supra, 358 U.S. 59, at page 60, 79 S.Ct. 104 at page 105, which brought it about. That being so, mileage, travel, carrier fares, board and lodging during the absence were deductible.

What did Louisiana require of its Supreme Court Justices? First, it required that "the Supreme Court shall be composed of the Chief Justice and six Associate Justices." Art. 7, § 4. As to the Justices, the Constitution imposes a two-year residential requirement within the district immediately prior to election.¹¹ And, of decisive importance, it requires that the Supreme Court, made up of Justices geographically qualified and elected from districts, "shall always be composed of Justices from said Districts."¹² That this reflects the settled and historically wrought-out public policy of Louisiana to have a supreme tribunal representative of its heterogeneous people¹³ is made clear by the constitutional provision which automatically vacates the office where the holder thereof changes "his residence * * * from the district * * * in which he holds such office."¹⁴

The Government cannot escape the geographical residential requirement of residence within the district for eligibility and election. It concedes — as it must — that up to the...