OPINION
Turner, Judge:It is the position of the respondent that the entire $1,103.33 received by petitioner from his employer, and generally referred to as the relocation expense for the move from his post of duty in California to his new post of duty in New Mexico, constituted gross income to him under section 61 (a)4 of the Internal Revenue Code5 and was properly included by petitioner and his wife in their joint income tax return for 1963; and further that the $903.33 expended by petitioner and his family as personal living expenses while living at the motel in Las Cruces and before moving into their house in Fairacres were nondeduotible personal, living, and family expenses under section 2626 of the Code.
The petitioner apparently concedes that the $903.33 received by him from his employer exceeded his 'actual cost of food and lodging during the said period by approximately $300 and contends that only the $300 represents taxable income to him. In making this contention he does not involve himself in the question as to whether the entire $903.33 should be included in gross income and $603.33, as representing the actual cost of the food and. lodging, deducted, or the conceded profit of $300 included in gross income without any deduction to arrive at what he regards as the correct amount of taxable income.
The respondent has consistently taken the position th'at payments by an employer to an employee, such as the $903.33 received by petitioner as a subsistence allowance for him and his family while awaiting permanent quarters at his new post of duty, are includable in the employee’s gross income. See Rev. Rul. 54-4-29, 1954-2 C.B. 53, to the effect that “Amounts received as allowances or reimbursements for meals and lodging of the employee and his family while awaiting permanent quarters at the new post of duty are includible in gross income of tbe employee.” Also see Bev. Bul. 65-158, 1965-1 C.B. 84, amplifying Bev. Bui. 54-429 and confirming respondent’s position as to the includability in gross income of meals and lodging for the employee and his family under the circumstances stated.
This Court has not at all times applied the above quoted provision from Bev. Rul. 54-429, supra, in dealing with payments or reimbursements received by an employee from his employer covering such expenses by him, the latest case being that of Homer H. Starr, 46 T.C. 743, in which it was held in circumstances similar in pertinent respects to those in the instant case that the said subsistence allowances were paid by the employer primarily for the employer’s benefit and as such did not constitute income to the employee. See also in that connection John E. Cavanagh, 36 T.C. 300.
Holding that the amounts received by Starr in reimbursement of his expenditures for meals and lodging for the period immediately following his arrival at his new post of duty and prior to the arrival of his family were in the nature of compensation and thus within the definition of gross income, the Court of Appeals for the Tenth Circuit reversed the Starr case, 399 F. 2d 675 (1968). Quoting from its previous opinion in United States v. ’Woodall, 255 F. 2d 370, the court further held that the expenditures by the taxpayer for such meals and lodging had no relation to any service being performed by Starr for his employer but were personal expenditures and therefore not deductible. This latter question had not been reached by this Court by reason of its holding that the reimbursed amounts were not includable in gross income.
We do not regard the instant case as being distinguishable from Starr in controlling respects. We have reviewed our opinion and conclusions in Starr in the light of the reversal by the Court of Appeals and conclude that the opinion of the Court of Appeals in Starr is decisive of this case. See also England v. United States, 345 F. 2d 414, which is to the same effect as the Court of Appeals’ opinion in Starr.
Beviewed by the Court.
Decision will he entered imder Bule 50.
Hoxt, /., concurs in the result. Wtthet, J., dissents.SEC. 61. GROSS INCOME DEEINED.
(a) General Definition. — Except as otherwise provided in this subtitle, gross income means all income from whatever source derived, including (but not limited to) the following items:
(1) Compensation for services, including fees, commissions, and similar items ;
(2) Gross income derived from business;
unless otherwise indicated, all references are to the Internal Revenue Code of 1954, as amended.
SEC. 262. PERSONAL, LIVING, AND FAMILY EXPENSES.
Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.