McLellan v. Commissioner

SimpsoN, /.,

concurring: I agree with the result reached by the majority, but I wish to set forth my reasons for reaching that conclusion.

Though I have carefully considered the decisions of the Courts of Appeals in England v. United States, 345 F. 2d 414 (C.A. 7, 1965), Commissioner v. Mendel, 351 F. 2d 580 (C.A. 4, 1965), and Commissioner v. Starr, 399 F. 2d 675 (C.A. 10, 1968), I remain of the opinion that employer reimbursement of reasonable moving expenses of an employee should' not be taxable. Some economic benefits received by employees, when furnished for the convenience of their employer, have long been regarded as excludable from gross income. Sec. 119; Diamond v. Sturr, 221 F. 2d 264 (C.A. 2, 1955); O. B. 514, 2 C.B. 90 (1920). In my opinion, reimbursement for reasonable moving-expenses should qualify for such exclusion.

We are concerned with an existing employee who is requested by his employer to transfer 'his place of employment. As a result of the employee complying with the request, he incurs extraordinary expenses for a temporary period of time. Not only must he pay the costs of transporting himself, his family, and their possessions to the locality of his new employment, but frequently, he and his family must also incur the additional expenses of living for a time in a hotel and eating-in a restaurant. In such circumstances, if an employer furnishes a moving allowance, it is not compensation for services rendered or to be rendered by the employee; it is to prevent the employee from bearing the expenses of the transfer requested by the employer. Like the reimbursement of an employee traveling on business of the employer, the moving allowance relieves the employee of expenses undertaken primarily on behalf of the employer. See James v. United States, 308 F. 2d 204 (C.A. 9, 1962). The moving allowance is also similar to the supper allowance, which has long been held to be excludable when furnished for the convenience of the employer. O. D. 514, supra.

In my opinion, the enactment of section 217, allowing a deduction for some moving expenses, does not constitute a reason for restricting the exclusion of reimbursed moving expenses to the items that are deductible under such section. When that section was enacted, Congress was aware that many employers reimburse employees for moving expenses in addition to those for which a deduction was being allowed. Yet, Congress did not limit the exclusion in the same manner as it did the deduction. Instead, it made clear that the courts should decide when a reimbursement is excludable. S. Rept. No. 830, 88th Cong., 2d Sess., p. 72 (1964), 1964-1 C.B. (part 2) 505, 576. Thus, Congress had the opportunity to correlate the deduction and the exclusion, but it chose not to do so. Congress wanted us to decide what items should be excludable without regard to the deduction provision.

For these reasons, I believe that the moving allowance received by the petitioner should be excludable. However, for us to so hold would be a futile act. Since the petitioner resided in New Mexico at the time the petition was filed in this case, this Court’s decision will be reviewed by the Court of Appeals for the Tenth Circuit, unless the parties agree upon a review by a different court — a most unlikely possibility. Sec. 7482(b). Since this case is indistinguishable from the Starr case, to hold for the petitioner would merely force the parties to the expense and trouble of securing a review and reversal of the decision. Inasmuch as the court which will review our decision is certain and such court has clearly passed on the issue before us, I would not follow the rule of Arthur L. Lawrence, 27 T.C. 713 (1957), in this case.

DkbNNBN, Raum, Fat, and DawsoN, JJ., agree with this concurring opinion.