concurring: I agree with the majority that the phrase “required as a condition of his employment” as used in section 119 of the Internal Eevenue Code of 1954 means “required in order for an employee to properly perform the duties of his employment.” Whether a particular taxpayer is required to live in a specific dwelling to properly perform the duties of his employment is a question of fact. The primary facts found in the instant case are sufficient in my view to support the ultimate fact that the petitioners were not required to accept the lodgings furnished to them as “a condition of” their “employment.” I therefore concur in the result reached by the majority.
While it might follow from the fact that it was not necessary for the employer to furnish petitioners their lodgings in order for petitioners to properly perform the duties of their employment, that the houses furnished to petitioners were not property sufficiently connected with their employer’s manufacturing operations to be “business premises” of the employer, I do not agree with the construction placed on the phrase “on the business premises” in the majority opinion. To construe that phrase to be limited to living quarters that constitute an integral part of the business property or premises on which the company carries on some of its business activities other than providing housing necessary for its employees properly to perform the duties of their employment equates “on the business premises” with “at the place of employment.”
The House bill contained the phrase “at the place of employment” in describing the location of lodging, the value of which was excludable from gross income, but this wording was changed by the Senate to “on the business premises of the employer.” The Committee of Conference adopted the language of the Senate report stating that the “term ‘business premises of the employer’ is intended in general to have the same effect as the term ‘place of employment.’ ” See H. Rept. No. 1337, supra at 18, A39; S. Rept. No. 1622, supra at 19, 190; and Conference Rept. No. 2543, supra at 26-27.
This legislative history indicates that the phrases “on the business premises” and “at the place of employment” though generally creating the same criteria for the location of lodging, the value of which is excludable from gross income of an employee, are not synonymous. In my view the change made from the House bill was intended to have “on the business premises” apply not only to lodging “at the place of employment” but also to a lodging which is “business premises” of the employer because it is so vital to the operation of such employer’s business that an employee live at a particular location that the employer supplies the dwelling at that location specifically for the purpose of having the employee live therein in order to enable the employee to properly perform the duties of his employment. Section 1.119-1 (c), Income Tax Eegs., provides: “For purposes of this section the term ‘business premises of the employer’ generally means the place of employment of the employer.” (Emphasis added.) The use of the word “generally” in this provision of the regulations likewise indicates that “on the business premises of the employer” is not always “at the place of employment.” See Charles N. Anderson, 42 T.C. 410, 416 (1964), on appeal (C.A. 6).
The term “on the business premises” as construed in the majority opinion would exclude from the application of section 119 lodging furnished to employees on certain'types of construction projects such as highways where the place of employment changes from day to day. Cf. William J. Olkjer, 32 T.C. 464 (1959). That construction of the term “on the business premises” would likewise mean that if a public road divided the living facilities furnished to construction workers on a project such as a tunnel, those living on the side contiguous to the property on which the tunnel was being constructed would be permitted to exclude from their gross income the value of the lodging furnished while those across the road would not be permitted to do so. Cf. George I. Stone, 32 T.C. 1021 (1959). In my opinion Congress clarified the words of the statute by changing the phrase “at the place of employment” to “on the business premises” to avoid the narrow construction of section 119 which the majority opinion in this case places thereon.
AtkiNS and Fat, JJ., agree with this concurring opinion.