dissenting: While I agree with the views of Judges Mulroney and Fay, as expressed in their dissents, I would add additionally that the majority opinion appears to me to ignore the plain mandate of the 1967 revised regulations, section 1.162-5, which were treated by the parties as applicable.
Respondent’s brief sets forth in its index only the 1958 version of the regulations in which the taxpaper’s primary purpose for undertaking the education is the determining test to be applied; the brief itself however states that the question presented is whether the courses taken by Carroll during 1964 “maintained or improved skills required by him in his employment as a police officer.” He then sets forth the argument, as follows:
Petitioners have failed to establish that the undergraduate courses undertaken by petitioner, James A. Carroll, during the year 1964 maintained or improved skills required by him in his employment as a police officer.
Petitioner’s brief likewise speaks only in terms of the maintenance or improvement of job skills and not in terms of 'primary purpose for the educational effort; this is recognized by respondent in his reply brief.
In this posture I would treat the case as one submitted, and properly so, as a burden of proof case under section 162 as interpreted by the more liberal view of the 1967 regulations. Respondent has ruled that the later regulations may be applied to open years prior to 1968 if relied upon by the taxpayer. Rev. Rui. 68-191.1 would conclude that petitioner here is relying upon the 1967 version of the regulations and that certainly he has met his burden of proof that the educational expenditures made by him in 1964 were for education which improved the skills required by him in his employment as a police officer. Such employment skills are to me as obviously improved by the study of history, philosophy, English, and political science as they would be by marksmanship, muscular exercise, or other physical fitness courses which come readily to mind as perhaps considered usual for law enforcement officers. Certainly the Chicago Police Department put its stamp of approval on petitioner’s course of study and recognized, as I conclude we should also, that the education undertaken increased Carroll’s “value to the Department.” To me, this is synonymous with saying that his skills as a policeman were increased and thus improved.
The majority opinion, while giving lipservice to the revised 1967 regulations and petitioner’s privilege to rely thereon under Rev. Rul. 68-191, then proceeds to ignore the regulatory provision by concluding that “the education undertaken by the petitioner was of an inherently personal nature and only tenuously related to his employment” so that the expense thereof is nondeductible under section 262. This argument was not relied upon or advanced by respondent, and in my view section 1.162-5 of the 1967 regulations rejects the “inherently personal” approach by first providing that education which maintains or improves employment skills gives rise to a deductible expense, and then by providing in 1.162-5 (b) (2) and (3) that only certain specified educational expenses which improve job skills “are personal expenditures or constitute an inseparable aggregate of personal and capital expenditures and, therefore, are not deductible as ordinary and necessary business expenses.”
It is clear to me that the specifically excepted educational expenses which do not qualify for deduction where job skills are improved are not of the type here involved. As I interpret the plain meaning of the regulations adopted in 1967, all expenses for education which maintain or improve skills required by the individual taxpayer in his employment “are deductible as ordinary and necessary business expenses” except for such expenses which under section 1.162-5 (b) (2) are “for education which is required of him in order to meet the minimum educational requirements for qualification in his employment.” Or which under section 1.162-5 (b) (3) are “for education which is a part of a program of study being pursued by liim which will lead to qualifying him in a new trade or business.”
Having concluded that petitioner has carried his burden of proving that his education improved his employment skills and that neither 1.162-5 (b) (2) nor 1.162-5 (b) (3) of the regulations disqualifies such expenses as personal nondeductible educational expenses under 1.162-5 (b), I would not decide the case as a majority of my brothers has on the basis that the expenses were “inherently personal and not proximate to the job” a ground neither urged nor even considered by the parties. I, instead, would decide in petitioner’s favor and allow the claimed deduction under section 162 and the 1967 regulations upon which petitioner relies. Even if the expense was of a sort generally regarded as personal, it was for education which improved petitioner’s skills in his then-existing employment as a police officer and not within the exceptions spelled out by the regulations making only certain specified expenses of this nature nondeduotible.
Fat and MulroNet, //., agree with this dissent.