dissenting: We have heretofore carefully considered the difficult problem of the deductibility of traveling expenses in the case of construction workers and others similarly situated who earned their livelihood by accepting temporary jobs away from the places of their residences. We have held that such expenses incurred while away upon jobs would be considered as having been incurred while away from home in the pursuit of the taxpayer’s trade or business, provided the jobs were temporary, as distinguished from indefinite or permanent. See Harry F. Schurer, 3 T. C. 544, E. G. Leach, 12 T. C. 20, and James E. Peurifoy, 27 T. C. 149, revd. (C. A. 4) 254 F. 2d 483, on the ground that the petitioners had not met the burden of proof of showing that their employment was not of indefinite duration. See also Coburn v. Commissioner, (C. A. 2) 138 F. 2d 763.
This position is not in conflict with Commissioner v. Flowers, 326 U. S. 465. There the Supreme Court held that a person employed permanently or for an indefinite time at a post of duty was not entitled to deduct living expenses at such post of duty or travel expenses between the post of duty and his place of residence, because such expenses were not required in the pursuit of the employer’s business and did not further that business. And it may be added that the Supreme Court there deliberately refrained from deciding whether “home” as used in the Internal Revenue Code means the place of business or whether it means the taxpayer’s actual residence.
The respondent does not here contend that the petitioner was not himself in business. Nor does he contend that his “home” was at the place of employment, if such employment was of temporary and short duration. Indeed, he allowed deduction of expenses in connection with short-term employment away from his regular home. This was apparently because at the place of residence the taxpayer had local union affiliation and had what might be termed a business headquarters. But he does contend that if the employment away from the place of residence or business headquarters is not for a short term, the place of employment becomes the post of duty, that such post should be considered the worker’s “home”; and that while there his expenses should not be considered as having been incurred while away from home in pursuit of his business within the intendment of the statute. This, as I see it, is tantamount to contending that in such a situation the employment becomes indefinite or permanent with the same ensuing tax consequences as in the Flowers case.
If the worker does take indefinite or permanent employment, there can be no doubt that the respondent’s contention is correct. But if in any case the evidence, fairly construed, shows that it was not the purpose to take indefinite or permanent employment and that the taxpayer’s failure to maintain his home at the place of employment (with resultant additional living and travel expenses) was due to the exigencies of his business, and not to reasons personal to him, then the expenses should be allowed as deductions. The answer in each case depends upon the facts and circumstances shown. The duration of the employment is not, in itself, determinative; it is a factor to be considered together with the other evidence, and may have an important bearing in determining the taxpayer’s intent and the basic character of the expenditures.
In the instant case the petitioner was away on one job for periods totaling approximately 22 months. However, the facts indicate that he did not intend to be away indefinitely or permanently, and it would seem that this job, although of longer duration than other jobs, fell within the pattern required by his business of taking employment temporarily wherever employment was available. It has been found that he was subject to call by his union to go elsewhere to accept employment. Under the circumstances it would not have been reasonable for him to move his residence and family to the situs of his work. Accordingly, I cannot concur in the view that his “home” was at the place of employment. I would hold that the expenses were incurred while away from the petitioner’s home in the pursuit of his trade or business. The findings of fact do not indicate to me that the extra living expenses were occasioned by reason of his personal conveniences and necessities, as distinguished from the exigencies of his business.
For the foregoing reasons, I dissent from the holding of the majority.
Opper, Ratjm, and FokresteR, JJ., agree with this dissent.