dissenting: I respectfully dissent.
The issue here is whether petitioner’s educational expenses are deductible under section 162(a) of the 1954 Code as business expenses. The Commissioner has promulgated regulations to serve as guidelines for the deductibility of these expenses. Therefore, the specific issue is whether the petitioner’s educational expenses are deductible under section 162(a) of the 1954 Code and the Commissioner’s regulations thereunder. This is so even though consideration be given to section 262 of the 1954 Code denying deductions for personal expenses. The Commissioner’s regulation under section 262 of the 1954 Code (sec. 1.262-1 (b) (9), Income Tax Begs.) provides that when the expenses are educational expenses they must qualify for deduction under section 162 of the 1954 Code and the regulations thereunder or they will ibe held nondeductible personal expenses.
The 1958 regulation required a factual determination that the taxpayer’s primary purpose in undertaking the education was to mam-tain or improve skills required in his employment. I heard the evidence in this case, which was ably tried by petitioner himself, and I would hold the evidence introduced by petitioner to establish the required primary purpose was sufficient.
Petitioner stated in his income tax return that the education was to improve his skills as a detective and his testimony was to the same effect. He stated in effect that his undertaking the college education was based on the Department General Order No. 63-24 which states such an education as he was pursuing would increase his value to the department. He submitted reports to his commanding officer stating his purpose in going to college, the college he was attending, and the courses he was taking. He was placed on special shifts so as not to interfere with his attendance at the university. According to the Department General Order No. 63-24 his request for special shifts would have been denied if his commanding officer had thought his course of study would “not increase [his] value to the department.”
Petitioner’s stated intention in undertaking the university education is supported by a reasonable inference arising from other undisputed evidence.
There can be no doubt but that the department employer was firmly of the opinion that a policeman’s college education would be most helpful in enabling the officer to carry out his duties. Department General Order No. 63-24 shows this. There is also evidence that the department has on occasion actually sent policemen to junior colleges and other colleges and paid their tuition.
I find no reason to disbelieve petitioner when he stated in his return that his college education was to improve his job skills and his testimony that it was undertaken pursuant to Department General Order No. 63-24. As stated, the department encouraged and helped its policemen to secure this college education to the end that they would be able to handle their duties more efficiently and become more valuable officers to the department. This means a policeman’s college education is carrying out the employer’s stated policy. He is doing exactly what his employer wants him to do in order to increase his competency as an officer. He is in effect participating in an employer-sponsored program. His declaration that his purpose in undertaking the education was to increase job skills sounds most truthful. When there is such an abundance of evidence that the employer urged the employees to go to college and was firmly of the opinion that such college education would improve the employee’s job skills, there is certainly a strong indication that the employee undertook the education to serve the employer’s goal of job skill improvement.
I would hold petitioner met his burden under the 1958 regulation of establishing that his educational expense was for the primary purpose of improving skills required in his work and hence the tuition deduction should be allowed.
In Welsh v. United States, 210 F. Supp. 597 (N.D. Ohio 1962), affirmed per curiam 329 F. 2d 145, the court held an internal revenue agent sustained his burden of establishing that his primary intention in undertaking a legal education was to improve skills required in his employment as internal revenue agent. In this case the court commented on the fact that the practice of internal revenue employees going to law school was not at all unusual and, in fact, it was encouraged. There was evidence that several of the taxpayer’s coworkers attended law school. The court was able to find that the primary purpose of the revenue agent in taking law was to maintain or improve the skills required in his employment, in spite of the fact that after he completed his legal education he took the bar examination, and shortly after becoming a member of the bar he left the government service and entered the general practice of law.1
The Commissioner’s last regulation, adopted in May 1967, provides, in part, as follows:
Sec. 1.162-5 Expenses for education. — (a) General rule. Expenditures made by an individual for education (including research, undertaken as part of bis educational program) which are not expenditures of a type described in paragraph (b) (2) or (3) of this section [relating to meeting minimum educational requirements of one’s employment and qualification for a new trade or business] are deductible as ordinary and necessary business expenses (even though the education may lead to a degree) if the education—
(1) Maintains or improves skills required by the individual in his employment or other trade or business, or
(2) Meets the express requirements of the individual’s employer, or the requirements of applicable law or regulations, imposed as a condition to the retention by the individual of an established employment relationship, status, or rate of compensation.
This regulation is equally applicable to petitioner’s case.2 Rev. Rul. 68-191, 1968-1 C.B. 67. It liberalizes the deductibility of educational expenses in that it deletes the primary-purpose test found in the 1958 regulation. Sec. 1.162-5 (a) (1), Income Tax Regs., is the portion of the above regulation that is applicable here. As applied to this case it means the cost of education which maintains or improves one’s business skill will be deductible — without regard to whether that was the taxpayer’s primary purpose in undertaking the education.
The majority does not seem to make any finding under this regulation with respect to whether petitioner’s evidence established that his college education in philosophy maintained or improved skills required by him in his employment as a police officer but instead emphasizes the personal nature of the college education. It seems to me any college education would increase general knowledge but it could also improve job skills and that is all the last regulation requires. Almost all of the government’s argument in this case is devoted to the issue with respect to this regulation with the Government contending the evidence is insufficient to establish the education undertaken by petitioner maintained or improved skills required by him in his employment.
To me it seems obvious that petitioner’s college education in philosophy would help him maintain and improve the skills required in his employment as a police officer. Included in the usual definition of “philosophy” is the explanation that it means a science which comprises logic, ethics, and an investigation of human nature and human conduct.
I do not think petitioner had a burden to show how his job skills would be improved by each and every one of the college courses he happened to 'be taking in the 1 tax year involved. If, as was held in Welsh v. United States, supra, an internal revenue agent’s legal educational deduction is not defeated by his taking courses in Pleading or Legal Writing, a policeman’s educational deduction for a college education in philosophy should not Ibe defeated because of courses in history, English, and the study of authors and playwrights. Petitioner took other courses such as the Philosophy of Science, the History of Modern Philosophy and American Government. The last-named course is described in the university bulletin as follows:
TMs course covers the origin and development of the Federal Constitution, the organization, powers, and limitations of the Federal government, and) the ideas upon which American political institutions are founded. Special attention is given to federal-state relations, with emphasis on the Constitution of the State of Illinois.
I would hold petitioner’s evidence was sufficient to establish that his college education in philosophy maintained or improved his skills as a policeman.
Because I would hold petitioner met his burden of proof to show the tuition was deductible under both regulations I would hold for petitioner on the issue presented.
FoRRestek, Scott, Fay, and Hoyt, JJ., agree with this dissent.The Welsh case has been cited with approval by this Court in many opinions including two Memorandum Opinions (William J. Brennan, T.C. Memo. 1963-243, and Milton L. Schultz, T.C. Memo. 1964-227) where it was held two Internal Revenue Service employees each sustained his burden of establishing that his primary intention in going to law school was to maintain and improve job stills and therefore the cost of the education was deductible.
This is an Interpretive regulation and therefore should be given retroactive effect. The Commissioner is merely exercising the power given to him by sec. 7806(b) of the 1954 Code to limit the retroactive application of the regulation to avoid inequitable results. Thus in the cited ruling he states “the taxpayers may rely on either the new regulations or the prior regulations” to claim deductions for the years prior to 1968.