concurring: I disagree with Judge Pierce that Crowther v. Commissioner, 269 F. 2d 292 (C.A. 9, 1959), reversing a decision of this Court reported at 28 T.C. 1293 (1957), is necessarily controlling here.
In this case by agreement the issue is limited to whether petitioner may deduct the cost of traveling between his home and his place of employment in the woods. Petitioner was not required to carry tools or equipment to and from his home to the worksite, and there is no issue with respect to the cost of his transportation from one location to another after he arrived at a worksite. The basic premise upon which this case is decided, or at least in my opinion should be decided, is that petitioner’s tax home was the entire area within a reasonable radius of his place of work where he might normally expect to find living quarters from which he could commute to work, and that the expenditures here involved were purely and simply commuting expenses, which all agree are nondeductible.
On this approach to the question we need not be concerned with whether each location was a separate job or whether the jobs were temporary or indefinite. Those questions arise only when the expenses are incurred while away from home — and, in my opinion, the expenses here involved were not incurred away from home. And here there was no business necessity of daily transporting his tools from his layout in the woods for the purpose of repair or replacement, to paraphrase the language used by the Court of Appeals in its Crowther opinion.
It does not appear from its opinion that the Court of Appeals considered this approach to the problem in the Crowther case. Nor can we predetermine how much weight the Court of Appeals for the Ninth Circuit would give to the absence of the necessity of carrying tools or use of the car for any purpose other than going to and from home, two factors which are not involved in this case but were considered in the Growther case. The Court of Appeals in the Growther opinion specifically stated that the business necessity of transporting tools daily appeared important to them. Consequently, while admittedly the facts in the two cases are rather similar, I do not consider the decision of the Court of Appeals for the Ninth Circuit controlling here.
Rattm, Bruce, and MuuroNey, //., agree with this concurring opinion.