dissenting in part: With the firm belief that the majority is running the hazardous risk of getting its rudder snagged on the “reef of judicial legislation,” I respectfully disagree with the holding that petitioners are entitled to deduct the cost of meals and lodging en route between their home in Lawrenceburg, Ky., and Rochester, Minn., where Mrs. Montgomery received medical treatment.
In my judgment the majority’s analysis has encrusted a strained and unwarranted interpretation on the phrase “transportation primarily for and essential to medical care,” as used in section 2i3(e) (1) (B) of the Code, the Treasury regulations, and the legislative history pertinent thereto.
I think Congress knew exactly what it was doing when it enacted section 213 (e) (1) (B) of the Internal Revenue Code of 1954 and used the explicit word “transportation” instead of “travel,” which historically has been used in successive revenue acts to include meals and lodging. See, e.g., sections 62(2) (B), 162(a) (2), 217(b) (1) (B), and 274(d) (1), where “traveling” expenses specifically include the cost of meals and lodging. Under the provisions of the Internal Revenue Code of 1939 the cost of meals and lodging was held to be a deductible medical expense. L. Keever Stringham, 12 T.C. 580 (1949), affirmed per curiam 183 F. 2d 579 (C.A. 6, 1950). With the prior law in mind, and when the proposed new legislation was being considered by the Senate Finance Committee, Under Secretary of the Treasury Folsom advised the committee that the new definition of medical care was intended to “permit deduction of cost of transportation necessary for health but not ordinary living expenses incurred during trip.” See Plearings before Senate Finance Committee on H.R. 8300, 83d Cong., 2d Sess., Part 1, p. 103. He added that it was one of the principal amendatory provisions. Thus, the intention of Congress, as indicated by the legislative history, is not in any way ambiguous. This section does not permit any exception.
It is clear that Congress was repeatedly advised by its responsible committees in charge of tax legislation and by the executive department responsible for assisting in the presentation and explanation of tax legislation that the new definition of “medical care” was intended to preclude the deduction of meals and lodging during the necessary absences from home for medical treatment. It is likewise clear that Congress denied in section 213 of the 1954 Code the expenses of meals and lodging except where they are incurred “as part of a hospital bill.” H. Rept. No. 1337, 83d Cong., 2d Sess., p. A60 (1954); S. Rept. No. 1622, 83d Cong., 2d Sess., pp. 219-220 (1954); sec. 1.213-1 (e) (1) (iv) and (v), Income Tax Regs.; Commissioner v. Bilder, 369 U.S. 499 (1962); Max Carasso, 34 T.C. 1139 (1960), affd. 292 F. 2d 367 (C.A. 2, 1961), certiorari denied 369 U.S. 874 (1962).
A fundamental error in the majority opinion is that section 262 is completely ignored. Section 262, which replaced section 24(a) (1) of the 1939 Code, reads: “Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.” Section 262 eliminated the former special reference to “extraordinary medical expenses” and provided instead that no deduction of living expenses (which of course includes meals and lodging) would be allowed unless expressly provided in another section of the same chapter of the statute. This means that when a taxpayer asserts that meals and lodging incurred during absences from home necessary for medical care are deductible under the 1954 Code, he must carry the burden imposed by section 262 of pointing out where such expenses are “expressly” included among the deductible items related to medical care. This cannot be done here because there simply is no such express provision. Cf. New Colonial Ice Co., Inc. v. Helvering, 292 U.S. 435, 440 (1934).
In ascribing its own meaning to the word “transportation,” the majority has also ignored one of the basic principles of statutory construction, i.e., that identical words appearing in different sections of the statute are presumed to have been used in the same sense and with the same meaning. See Helvering v. Stockholms Enskilda Bank, 293 U.S. 84 (1934); Noteman v. Welch, 108 F. 2d 206 (C.A. 1, 1939); and Homer H. Marshman, 31 T.C. 269 (1958), reversed on other grounds 279 F. 2d 27 (C.A. 6, 1960). For example, Congress provided for “travel” expenses in section 62(2) (B) and for “transportation” expenses in section 62(2) (C) as deductions which are allowed in the computation of adjusted gross income. Section 1.62-1 (g), Income Tax Eegs., which fairly and validly implements the provisions of the statute, provides that “transportation” is a narrower concept than “travel,” and does not include meals and lodging. By contrast, the words “travel” and “traveling” include meals and lodging. There is no doubt in my mind that Congress, fully aware of the differences in the statutory meaning between “transportation” and “travel,” carefully chose and used “transportation” in section 213(e) (1) (B). The word clearly has the same meaning in section 213(e) (1) (B) as it has in section 62(2) (C). Certainly the Supreme Court is not doubtful about the meaning of “transportation” or the congressional intent, for it said in Commissioner v. Bilder, supra at 501-502, that the position is “unassailable” that—
it was the purpose of Congress in enacting § 213(e) (1) (A) of the 1954 Code, * * * to deny deductions for all personal or living expenses incidental to medical treatment other than the cost of transportation of the patient alone, that exception having been expressly added by subdivision (B) to the definition of “medical care” in § 213(e) (1). * * *
Surely, the plain, ordinary, natural, and familiar meaning of the word “transportation” is preferable to any hidden sense that the studious attention of a keen mind (my brother Judge Tannenwald), spurred by the exigency of a hard case, would discover. Cf. Hanover Bank v. Commissioner, 369 U.S. 672-688 (1962); Malat v. Riddell, 383 U.S. 569, 571 (1966). Indeed, the search for the meaning of a word is too often the pursuit of a mirage.1
Finally, I think it is legally unsound and illogical to make a distinction, as the majority opinion does, between meals and lodging at the place where medical treatment is received and meals and lodging while “in transit” to such place. Clearly the costs of meals and lodging at the place of medical care are not deductible. Commissioner v. Bilder, supra, Max Carasso, supra. I would apply the same principle to the “in transit” living expenses. Under the majority opinion, taxpayer A, who lives in Washington, D.C., and stops off for lunch on the way to receive medical treatment at the Washington Hospital Center, could not deduct the cost of his meal as a medical expense; but taxpayer B, who lives in Cumberland, Md., and stops off for lunch in Frederick before arriving at the Washington Hospital Center for treatment, can deduct the cost of his meal as a medical expense. The result is incongruous. Obviously Congress intended that both should be dissallowed because only meals and lodging which are part of the “cost of inpatient hospital care” are expenditures for medical care. Sec. 1.213-1 (e) (1) (v), Income Tax Begs. Therefore, I would decide this issue for the respondent.
Tietjens, Withey, and Scott, JJ., agree with this dissent.“The question is,” said Alice, “whether you can make words mean, so many different things." “The question is,” said Humpty Dumpty, “which is to be master — that’s all!” Carroll, “Through the Looking Glassy 127-128.