dissenting: With all due respect I think the majority opinion in this case will simply add more confusion to this already confused problem of the taxability of reimbursed, and the deducti-bility of unreimbursed, moving expenses of employees.
The opinion makes no finding that the unreimbursed portion of petitioner’s moving expense was an ordinary and necessary business expense of the taxpayer-employee, except by an assumption, based on our decision in John E. Cavanagh, 36 T.C. 300 (1961), that because the taxpayer there was not required to include in Ms income reimbursements of moving expenses they could not be personal living expenses and therefore must be expenses of taxpayer’s business as an employee. But this assumption flies directly in the face of H. Willis Nichols, Jr., 13 T.C. 916 (1949), and the other cases cited in the majority opinion, which hold that the expenses of moving a taxpayer’s family and household effects from one post of duty to another are personal and not business expenses, and are therefore not deductible.
Furthermore, I do not think the conclusion reached in Cavanagh requires or necessarily supports this assumption. The issue in Cavanagh was the includability of reimbursed expenses in taxpayer’s income. We found that the expenses involved were incurred for the convenience of the employer and being of no benefit to the employee were expenses of the employer and not income to the employee. If the expenses assumed by an employer, either by direct payment thereof or by reimbursement of the employee, in moving an employee, Ms family, and personal effects from one post of duty to another, are of no economic or financial benefit to the employee and are not compensatory in nature, but are for the convenience and benefit of the employer, I see no reason why they need be included in the income of the employee. This is a question that may have to be decided on the facts of each case. But I do not think it necessarily follows that the employee may deduct his unreimbursed expenses of moving himself, his family, and his personal effects from one post of duty to another except to the extent that he can show independently that such expenditures are either an ordinary and necessary expense of his business as an employee so as to be deductible under section 162(a) of the Code, or are deductible under some other section of the Code. Personal living expenses, which these would appear to be unless proven otherwise, are specifically made not deductible under section 262 of the Code.
Pierce and Hoyt, JJ., agree with this dissent.