concurring in the result: I concur in the result herein but for reasons which will appear hereafter I do not concur in various of the pronouncements appearing in the opinion.
The question is comparatively simple as are the facts. Petitioner was an independent contractor, engaged during the 2 years herein primarily in planning and supervising the automation of generating stations in blew Hampshire, three of which, the only projects now involved, were located 70 to 75 miles from Milford, also in New Hampshire, where petitioner had his home.
Prior to the actual automation, petitioner spent a goodly number of days at each particular station to obtain information to be used as the basis for the work later to be done. For this he made no charge and received no allowance for expenses incurred.
Some preparatory work for which he did charge, such as making wiring diagrams, he did in his office and did not involve travel away from Milford. Aside from such work at home his only work on the various projects, insofar as shown, was at the particular power station where he happened to be working at the time, but he nevertheless chose to drive home each night though it meant a drive back the next morning, a round trip of 140 to 150 miles, before he could resume his work. There was no work on the way to and from his home.
For the work at his office, such as the preparation of the wiring diagrams and his supervisory work in the actual transition of the particular station to automation, petitioner charged for his services $100 per day. His charge for transportation was 10 cents per mile. He also charged for the cost of his lunches. Fie ate his breakfast and dinner on the way to and from his work but made no claim for reimbursement therefor, for the stated reason that he was already charging as travel expense more than the cost of such two meals plus what lodging would have cost had he remained at the station where he was working rather than returning to Milford each night.
For the Hillsboro job, which was only 32 miles away, he stayed in the vicinity of the station each night and there is now no dispute that he is entitled to deduction for meals as well as lodging while on that job.
The statute is not complicated or involved, even though under certain variations of facts it can be difficult of application. By section 262 of the Code it is provided that “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.” There is no dispute that the cost of meals is a personal living expense.
In section 162(a) (2) it is “otherwise expressly provided” that “traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business” shall be allowed as a deduction, and the sole question is whether petitioner’s cost of meals were such expenses “while away from home in the pursuit of a trade or business” within the meaning of the statute.
The respondent in his determination of deficiency allowed deduction of the travel costs incurred by petitioner in his nightly trips back to Milford and of his return to work the next day but disallowed deduction of the cost of his breakfast and dinner on the way to and from work and of his lunch while there. In support of such disallowance he cited and relied on such cases as Fred Marion Osteen, 14 T.C. 1261, and Sam J. Herrin, 28 T.C. 1303. Jerome Mortrud, 44 T.C. 208, to the same effect has since been decided. In some of those cases the tax-papers traveled even greater distances than petitioner here. There is, however, this difference. There the taxpayers began their day’s work in their home area and finished their day’s work at the same place. Their work took them out and their work brought them back. They merely interrupted their work at mealtime wherever they happened to be and in that there was no material difference from the worker whose post of duty was not transitory.
The petitioner, on the other hand, seeks to bring his case within Hanson v. Commissioner, 298 F. 2d 391, reversing 35 T.C. 413. In that connection he makes two contentions, one that as in Hanson his trips home at night from stations at which he was working were occasioned by the requirements of his business, and, second, that the so-called overnight rule is not supported by the statute.
Petitioner did testify broadly, after the manner of pronouncements in the Hanson opinion, that his trips home did have a business purpose and based on that testimony argues that his case is thus brought under the reversing decision of the Court of Appeals in the Hanson case.
The Court here has not seen fit to accede to the request for a finding of fact which goes quite that far, but has made a finding that when petitioner returned home late in the evening he sometimes used his technical books and data, answered business correspondence, received telephone calls, and prepared diagrams and drawings necessary for his work. Apparently, however, it does not regard that finding as an adequate basis for applying the Hanson rule since it has not so applied it.
Having seen and heard the testimony of petitioner, the only witness, I do not think his testimony merits any serious consideration of a finding that his return home at night was in fact motivated by a business purpose. Aside from the lateness of the hour of his return to Milford and early hour of departure from Milford to return to his work at the power station, the testimony consisted of conclusions and generalities. There was the matter of telephone calls which would come in late at night and blueprints to be received in the mail. The only telephone calls specified were those to or from a typist-secretary who lived in Boston and no reason is shown as to why such calls as between Boston on the one hand and Salmon Falls, Somersworth, or Bristol rather than Milford on the other would not have been the normal logical business course when the cost and wear and tear of the drive to and from home are taken into account. Furthermore, where the blueprints expected had to do with the particular job under way the logical and reasonable place for them to have been sent would seem to be Salmon Falls, Somersworth, or Bristol and most certainly there is no showing or suggestion that any such blueprints did not have to do with the particular job on which petitioner happened to be working at the time, or if they did not petitioner needed to receive them in Milford for the doing of whatever had to be done with respect to them prior to the conclusion of the instant job. Furthermore, there was the job at Hillsboro when, even though only 32 miles away, petitioner did not return home at night and there was no suggestion that there were any anticipated or experienced acts necessary to his work requiring him to return to Milford on any one of the nights from October 30 through December 1,1961, while he was working at Hillsboro. On the other hand, the record is to me not only persuasive but convincing that petitioner’s trips back to Milford at night were by reason of personal preference and desire rather than business considerations.
Actually, petitioner does not, in my opinion, do his case justice in his effort to make it fit Hanson. The facts in Hanson more nearly resembled those of the turn around cases such as Osteen and Herrin, the only really notable difference being that in Osteen and Herrin the trip out and back was the same each day, whereas in Hanson it did not always follow the same course, but it did cover stops on the way to and from, some as close as 8 miles from the starting point. Hcmson is not this case. Petitioner’s work in the instances here pertinent was never at more than one place at a time, each 70 to 75 miles from Milford. There was no work to and from his home. Further, I think the Court does both itself and the law, and more particularly Congress, a disservice in embracing the Hanson case as authority for its pronouncements here.
In addition it seems to me that it took its interpretation of the law deeper into the maze of confusion in its effort to explain away what the Committee on Ways and Means and the Committee on Finance of the Senate had to say about existing law, particularly what was reenacted without change as section 62(2) (B), in explanation of the purpose of section 62(a) (C) which enacted for the first time in the Internal Revenue Code of 1954, allowed the deduction by an employee “of expenses of tramsportation paid or incurred by the taxpayer in connection with the performance by him of services as an employee” (emphasis supplied) in arriving at adjusted gross income.
First the majority opinion notes that the committee explained that “At 'present business transportation expenses earn, be deducted by an employee in a/rriving at adjusted gross income only if they are reimbursed by the employer or if they are incurred while he was away from home overnight.” (Emphasis supplied.) As already noted, the reference there was to existing law reenacted without change as section 62(2) (B) of the 1954 Code, which for the purpose of arriving at adjusted gross income, allowed the deduction “of expenses of travel, meals, 'and lodging while away from home, paid or incurred by the taxpayer in connection with the performance by him of services as an employee.”
Later in their reports the committees in further explaining the purpose and intent of the new section 62(2) (C) stated that “Transportation expenses which are ‘ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business’ and are not ‘personal, living, or family expenses’ are allowed” under the new subparagraph (C). They went on to explain the limitations of the new provision by explaining further the meaning of existing 62(2) (B), to the effect that “The term ‘transportation’ is a narrower concept than ‘travel’ and does not include meals and lodging but includes only the cost of transporting the employee from one place to another when he is not away from home in a travel status. If the employee is cuwcuy from home in a tra/vel status his empernes would be deductible under sub-paragraph (B).” (Emphasis supplied.)
With respect to this latter part of the committee report, the Court’s opinion seems to draw comfort for its conclusion here from the fact the word “overnight” was not repeated and from the observation that actually the reference to “overnight” was not necessary and the scope of “travel away from home” was no more than incidental, the implication being that the committee indulged in needless effort in explaining that if the employee was “away from home in a travel status” his transportation costs were already deductible under subparagraph (B), which as explained earlier in their reports would be the case “only * * * if they are incurred while he was away from home overnight.” However one may feel about it or the necessity for saying it, that is what the Committee on Ways and Means and the Committee on Finance did say in their reports, as to the deductibility under section 62(2) (B) of expenses of travel, meals, and lodging “while away from home,” incurred or paid by an employee in connection with the performance by him of services as such, and we must, or at least should, I think, conclude that the committees, in connection with the enactment of the law by Congress, did feel that it was important to say it.
Not only did Congress so speak through its committees but it reenacted the provisions of both sections 62(2) (B) and 162(a) (2) without change, as, with respect to the provisions of 162(a) (2), it had theretofore done repeatedly. In that connection it is to be observed that the majority opinion makes no suggestion that the words “while away from home” have a different meaning in section 162(a) (2) from the same words in section 62(2) (B).
On the facts here I see no need actually to become deeply enmeshed in an argument about the so-called overnight rule. Taking into account the facts relating to the work at Salmon Falls, Somersworth, and Bristol, the distances and hours of travel, including the hour of his return at night and the hour of his departure from Milford the next morning, they, in my opinion, indicate a rather obvious situation of “being away from home in travel status” within the meaning of the statute. Certainly if petitioner had followed what to me, under the facts here, would have been the normal course, by staying overnight at the station where he was to resume work the next morning, he would beyond question have been in travel status away from home on business and the cost of his meals as well as the cost of his lodging would have been allowable and would have been allowed, 'as note for instance respondent’s concession that the cost of meals and lodging incurred during work at Hillsboro were and are allowable. Hillsboro is only 32 miles from Milford. Salmon Falls, Somersworth, and Bristol are 70 to 75 miles from Milford and 'by returning home each night a trip of 140 to 150 miles per day was required. Hot only that, but petitioner was required to start back for his job at 6 in the morning and arrived back in Milford late at night, often only a little before 10 at night.
On the facts here, it is my opinion that it was the trip home at night which was personal rather than business and that if nondeductible personal expenses were incurred they were the cost of the travel back home at night, thus requiring also the cost of return to work the next morning, not the cost of meals. The petitioner gives support to this view in his explanation of the reason for not charging the cost of his breakfast and dinners to his employer. In my opinion petitioner “was away from home in travel status,” to use the words of Committees on Ways and Means and on Finance, and the cost of his meals were deductible as travel expenses within the meaning of section 162(a)(2).
Certainly neither Williams, Hanson, nor Chandler, relied on by the majority, were this case (and with respect to Chandler the opinion even labels what was said insofar as it might be pertinent here as dicta) and to reach into the opinions in those cases merely for the sake of outlawing use of the term “overnight,” something Congress not only refrained from doing, but to the contrary denoted that it regarded it as useful in expressing its overall intent, is not to me in furtherance of the established and accepted function of the Tax Court to contribute to settlement of the meaning of the law. And not only that but in my reading of what is said it tends to foster litigation by casting a cloud over such cases as Osteen, Herrin, and now Mortrud.
Mulronex, J.,concurring in result: I think this case is indistinguishable from Hanson v. Commissioner, 298 F. 2d 391, reversing 35 T.C. 413. In both cases the Commissioner allowed deduction for the taxpayer’s transportation expenses for out-of-town business trips that did not require the taxpayer staying away from home overnight. In each case it is stated that the sole issue is as to deduction for meal expenses where he was not absent from his home overnight. Contrary to the statement made in the majority opinion, I, for one, think the application of the overnight rule makes as much sense as any other rule that could be stated. After all, it merely disallows the business day meal expense of the workman who leaves home in the morning and returns to Iris home at the end of his working day which is not very startling in view of the fact that such meal expense is generally considered personal and not business. However, since the Eighth Circuit Court of Appeals in the Hanson case cited above has held the overnight rule is arbitrary and not sanctioned by the statute (and I think this is a close question), I would merely follow that reversal of our prior position.
I would not agree that if the statute affords no basis for the overnight rule it would still sanction other tests for meal expense deductions for business day trips such as an “hour-distance” test, or some other test. Such new tests would seem to me to be at least as arbitrary as the overnight rule. Either the overnight rule is justified or no rule that disallows meal expense on any out-of-town business trip, however short in terms of time or distance, is justified.
Simpson, J..concurring: I agree with the result reached in the majority opinion, but I believe that we should make clearer what we are doing.
It is clear that we are no longer applying the overnight rule in all cases, but it is not clear what rule is being substituted for it. The majority opinion may be read to hold that whenever a person travels a substantial distance from his home and is away for a long workday, and when such travel is for business purposes, he is away from home so that the costs of his meals are deductible. If this is our rule, we are in effect reversing such decisions as Sam J. Herrin, 28 T.C. 1303 (1957), Allan L. Hanson, 35 T.C. 413 (1960), and Jerome Mortrud, 44 T.C. 208 (1965); and I believe that we should say so. If we are not adopting such a “substantial distance and time” test, then I believe that we should make clear what test we are applying. There are many taxpayers who will be affected by this decision, and if we do not make clear whether the Herrin, Hanson, and Mortruid opinions are still in effect and what is the rule, then we are compelling people to engage in further litigation to learn the answer.
For my part, I would adopt a “substantial distance and time” test. I recognize that such a test would in some cases result in the allowance of a deduction for meals that did not absolutely have to be eaten away from home because of the taxpayer’s business activities. For example, in this case the taxpayer has not shown that he was required to eat his meals while engaged in business traveling — he would not have eaten them at home in any event. Nonetheless, I would adopt the “substantial distance and time” test, because it is a rule of thumb that achieves substantially the right results, and because the advantage of certainty it offers outweighs its slight imperfection. If such test is adopted, we must define substantial distance and time; but once those definitions are developed, the test will be a good deal simpler than to attempt to determine in each case whether the circumstances show that the meal had to be eaten while the person was engaged in business travel.