dissenting: I cannot agree with the prevailing opinion on either issue.
1. There is no sound basis for distinguishing between a “new” and an “old” employee. If the amounts advanced to cover moving expenses of an employee in order that he may render services for the employer at a new place of employment are regarded as not having the quality of taxable income under the statute in respect of an “old” employee, then there is no convincing reason for treating differently the reimbursement of identical expenses on behalf of a “new” employee. Such reimbursement is no more compensatory nor does it confer any more benefit upon the employee in one case than in the other. The discrimination is not justified by the statute. Nor is it based upon any rule enjoying long-standing judicial approval. To be sure, there is a small cluster of recent cases which differentiate between a “new” and an “old” employee. This Court has never approved any such distinction in a court reviewed case. Indeed, the Court in John E. Cavanagh, 36 T.C. 300, in holding that the reimbursement did not represent taxable gain, went far to find that the particular taxpayer was an “old” employee; it was thus unnecessary for it to consider whether the opposite result should be reached in the case of a “new” employee — an issue that I regard as having been left open. The subsequent decision in Alan J. Vandermade, 36 T.C. 607, erroneously assumed, in my judgment, that the Gavanagh case sanctioned the distinction. Vandermade was not court reviewed.
No question is here presented as to deductions by the employee; the issue is solely one of including in his gross income the reimbursement of the costs incurred by him in moving to a new location to serve his employer. That problem is still fresh from a judicial point of view, and I would not approve a distinction between “old” and “new” employees that has very little, if anything, to commend it and which is productive of such a harsh result.
2. I would reach the same conclusion in respect of the real estate commission paid by the employer on the sale of the taxpayer’s former residence. The present case was considered originally by the Court together with Harris W. Bradley, 39 T.C. 652, and I agree with the dissenting views announced therein. Prior to Bradley, it was the rule in this Court — for a period of at least 15 years — that where an employer reimbursed his employee for loss sustained upon sale of the latter’s residence in order to move his home closer to the new place of employment, such reimbursement was merely part of the “amount realized” from the sale and did not result in the receipt of any taxable gain. Otto Borg Schairer, 9 T.C. 549. The payment of the commissions herein merely affected the amount of the sales price, since it has long been recognized that sales commissions are but a charge against the proceeds of sale. Spreckels v. Commissioner, 315 U.S. 626. Accordingly, under Schairer, this item would not constitute income to the employee. I think Schairer was correct and should not have been overruled.5 It is one thing to overrule a patently wrong decision in order to reach a just result. It is an entirely different matter to overrule a case which, at worst, was merely doubtful, and where the new rule is productive of an unjust result.
Of course I accept Bradley, as I must, as the law in this Court. But, as indicated, the present case and Bradley were considered together by the Court, and I therefore think it appropriate to announce these views at this time.