dissenting: I disagree with the opinion of the majority in two major respects.
First. — The majority has denied the petitioners a deduction for lodging expenses incurred by the petitioner Arthur 0. Puckett, Jr., while attending a Reserve Officers Training School of the U.S. Army at Fort Knox, Ky., in 1967, on the ground that “the quarters allowance” received by him while attending the Reserve Officers Training School “was to reimburse him for his lodging expenses during such service.” In my opinion, for the reasons hereinafter more fully discussed, the quarters allowance received by petitioner may not be used as an offset against his lodging expenses. I agree that petitioners are not entitled to the deduction claimed for lodging expenses, not for the reasons stated in the majority opinion, but on the ground that Fort Knox being petitioner’s designated post of duty, such expenses were “personal, living” expenses which are not deductible under the provisions of section 262.
Secondly. — -The majority has allowed the petitioners a deduction for automobile expenses incurred by the petitioner Arthur C. Puckett, Jr., in 1967, for weekend round trips between Fort Knox and La-Vergne, Tenn., on the ground that “the petitioner’s travel between Fort Knox and LaVergne on weekends was due to the exigencies of his business as postmaster,” and his expenses “ordinary and necessary expenses of his occupation as postmaster.” I respectfully disagree. Petitioner’s duties as postmaster did not require him to travel outside the area served by the LaVergne Post Office. He sought and was granted leave of absence in order that he might attend the Reserve Officers Training School at Fort Knox and “qualify for promotion” as a reserve officer, a business wholly unrelated to his employment as postmaster. His return to LaVergne on weekends was a personal problem and the expenses involved in connection therewith were not, in my opinion, “ordinary and necessary” expenses of Ms employment as postmaster, within the meaning of section 62(2) or section 162(a).
The statement of the issues contained in the majority opinion, in particular the second issue, assumes as a fact that the weekend round trips which petitioner made between Fort Knox and LaVergne were “required by” his employment as postmaster. As I shall hereinafter demonstrate, the performance of his duties as postmaster did not require any travel outside the area served by the LaVergne Post Office. Also, the military service in question was not with the Tennessee National Guard, as might be inferred from the statement of the first issue. I would restate the issues as follows: (1) Whether petitioners are entitled to deductions for the year 1967 for expenses, including expenses for meals, lodging, and automobile expenses, allegedly incurred by the petitioner Arthur C. Puckett, Jr., while attending a Reserve Officers Training School of the U.S. Army at Fort Knox, Ky; (2) whether petitioners are entitled to a deduction for the year 1967 for automobile expenses incurred on weekend round trips between Fort Knox, Ky., and LaVergne, Tenn.; and (3) whether petitioners are entitled to a deduction for the year 1967, for expenses allegedly incurred for books and supplies during petitioner’s attendance at the Reserve Officers Training School, in excess of the amount allowed by respondent.
The majority opinion also states, at page 1098: “From the record in this case, it is not clear as to whether the petitioner’s military service at Fort Knox was required, or was in lieu of other required military service, or was voluntary.” In my opinion, the record clearly reveals that petitioner sought the military service at Fort Knox, “to qualify for promotion” (Jt. Exh. 2-B), and that he made a trip to Fort Knox in 1966 “to see about enrolling in school in Feb. 1967” (Jt. Exh. 1-A). These facts are not mentioned in the majority opinion.
I would also add, contrary to the statements in the majority opinion at pages 1097 and 1098, that petitioner’s military service did not constitute an employment. Rev. Rui. 55-109, 1955-1 C.B. 261, cited by the majority, held that members of reserve components of the Armed Forces attending training drills, etc. “are regarded as engaged in a trade or business.”
As the trial judge who heard this case I reported and made findings of facts, including a preliminary statement of concessions made by the parties, as follows:
Respondent stipulated that petitioners did not realize a long-term capital gain of $4,000 during the year 1966, resulting from the involuntary conversion of property. Accordingly, there is no income tax deficiency for the year 1966. Respondent further stipulated that petitioners are entitled to a deduction in the amount of $416.84 for expenses incurred by petitioner in attending the Postmasters’ Rational Convention at San Juan, P.R., in the year 1967. On brief, respondent conceded that petitioners are entitled to a deduction in the amount of $92.40 for laundry expenses incurred during petitioner’s attendance at the Reserve Officers Training School at Fort Knox, Ky., in the year 1967. Petitioners have not contested respondent’s determination that they are not entitled to a deduction for the year 1967 for Officers Club dues.
During the taxable years involved the petitioner was employed as the postmaster of the U.S. Post Office at LaVergne, Tenn. During 1967 the post office at LaVergne, Tenn., had three full-time employees. They were the postmaster, clerk, and substitute clerk.
Petitioner’s wife was employed at the LaVergne, Tenn., Post Office as a temporary substitute clerk. This employment was on a part-time basis, except for the period of February 27, 1967, through August 2, 1967, when she was employed on a full-time basis. The LaVergne Post Office was the only first-class post office in the State of Tennessee without either an assistant postmaster or an assistant to the postmaster.
During 1967, petitioner was also an officer in the Tennessee National Guard. On Monday, February 27,1967, in order “to qualify for promotion,” petitioner entered temporary active duty with the TJ.'S. Army at the Reserve Officers Training School, Fort Knox, Ky. Pie remained on active duty mitil Wednesday, August 2, 1967. Prior to going on temporary active duty, he contacted the Regional Office of the Post Office Department at Memphis and requested leave to attend the school. In furtherance of its policy of cooperating with Department of Defense military training programs, the Post Office Department granted petitioner leave, to go on active duty with the military, on the condition that the LaVergne Post Office render satisfactory service during the period of his absence. This would include service to the public, financial responsibility, reports, etc.
There are certain duties a postmaster must perform. A few occur by pay periods (every 2 weeks) and other major ones by accounting periods (every two pay periods). At the time petitioner was granted leave to attend the Reserve Officers Training School it was understood that he would return home each weekend to see that service at the La-Vergne Post Office was maintained and problems resolved.
During petitioner’s active duty he took 15 days of military leave, 50 days of annual leave, and 50 days of leave without pay ,• from his employment at the post office. On their income tax return for 1967, petitioners claimed and were allowed a deduction in the amount of $28.45 for telephone calls from Fort Knox to LaVergne by petitioner to his wife to discuss postal affairs.
During petitioner’s active duty, he stayed at a bachelor officers quarters (BQQ) at Fort Knox, Ky., at a cost of 60 cents per day, or a total cost of $91.80, for the entire period. During this time petitioner ate his meals at the officers club, the messhall, and at unidentified restaurants off the military post.
Petitioner kept a record of his expenses while on active duty for 3y2 weeks and found that they were running $11 or so dally. He also kept a record of the mileage driven on the post for the same period. However, rather than continuing to keep such records, because of his 'busy schedule and because his expenses had been running around $11 per day when he kept those records, he used this as a reasonable figure for his daily expenses throughout the entire period of active duty. In addition, he estimated the mileage driven on the post to foe 90 miles per week. Petitioner’s estimate for mileage driven on the post is based on the distances from the various buildings on the post to his BOQ. Thus, he was 2.8 miles from the main gate, 2 miles from officers mess, 1.8 miles from the main Post Exchange, 1.3 miles from his classroom building, 1.8 miles from the laundry, etc. He estimated the number of times he would go to each of these buildings during a week’s time and projected this over the entire period. Petitioner introduced no records of any expenses he incurred for which the $11 per day was claimed, nor any records to show the mileage driven in his car at Fort Knox during the period of active duty.
During petitioner’s active duty, he remained at Fort Knox, Ky., approximately 5% days each week or from Sunday night through Saturday noon. Each Saturday afternoon the taxpayer returned to La-Vergne, Tenn. He generally returned to Fort Knox on Sunday afternoon. The round trip distance between LaVergne, Tenn., and Fort Knox, Ky., is approximately 380 miles. The Army paid petitioner a travel allowance (based on mileage) for his travel expenses incurred between LaVergne, Tenn., and Fort Knox, Ky., and Fort Knox to La-Vergne at the beginning and end of petitioner’s period of active duty. It did not pay petitioner any travel allowances for his weekend round trips in the interim.
In addition to the basic Army salary received during the period of active duty, petitioner received from the Army a subsistence allowance of $47.88 per month and a quarters allowance of $130.05 per month, or a total for the period of active duty of $263.34 for subsistence and $715.27 for quarters. Petitioner offset Ms expenses for meals on the post by the amount of subsistence allowance received. He did not offset his lodging expense by the amount of quarters allowance received.
During the years in question petitioner was active in church affairs. He was one of the founders of the Miracle Baptist Church of La-Vergne, Tenn. Although not officially designated as such, he acted as assistant pastor of the church during the greater part of the years involved. Petitioner was also chairman of the executive committee, chairman of the building committee, Sunday school superintendent, teacher, and purchasing agent for the church. When petitioner went on temporary active duty, however, he relinguished all of these positions, with the exception of teaching the Sunday school class.
On his income tax return for the year 1967, petitioner deducted $1,738 for expenses which were described on the return as being “in lieu of per diem.” The amount of $1,738 was computed on the basis of $11 per day for 158 days.1
The principal issues presented concern the deductibility of various expenses, including automobile expenses, meals, and lodging incurred on the post, and automobile expenses incurred on weekend trips between Fort Knox and LaVergne. A minor issue involves the deduct-ibility of the cost of books and supplies purchased by petitioner for use in connection with his military training at Fort Knox.
The first issue involves automobile expenses and expenses for meals and lodging allegedly incurred by petitioner while at Fort Knox.
Respondent disallowed the claimed automobile and meals expenses for want of substantiation as required by section 274(d) of the Internal Revenue Code of 1954, as amended. The majority sustained respondent’s disallowance of these two items, and I agree.
With respect to the lodging expenses, it was stipulated that petitioner stayed in a Bachelor Officers’ Quarters (BOQ) for which he paid 60 cents per day, or a total of $91.80 for the entire period of active duty. Accordingly there is no question of substantiation of this expense. Respondent contends, however, that such expenses are to be “offset” by the quarters allowance which petitioner received from the Army during his tour of active duty. Petitioner contends that the allowance was paid him for the benefit of his family, who were not allowed to accompany him to Fort Knox, and, therefore, that he should not be required to offset the quarters allowance against his lodging expenses. Since petitioner’s quarters allowance was in excess of Iris lodging expenses, adoption of respondent’s contention would require the denial of the deduction claimed by petitioner.
In support of his contention, respondent argues that “If petitioner were allowed to deduct the cost of his lodging at Fort Knox without offsetting that cost by the quarters allowance he received, petitioner would obtain the double tax benefit of receiving a tax-free allowance, regs. 1.61-2 (b), to pay the cost of his housing at his permanent residence (and permanent place of employment) and a deduction for the cost of his lodging at his temporary place of employment.” Pie further argues that “In any event, the quarters allowance was received in connection with his temporary employment, active duty with the Army, and should be used to offset the costs of lodging incurred in connection with that employment,” citing Rev. Rul. 63-64, 1963-1 O.B. 30.
I agree with respondent, and the majority, that petitioner is not entitled to deduct the lodging expenses incurred by him while on active duty at Fort Knox, but do not agree that this result is to be determined by offsetting the quarters allowance against the lodging expenses.
In my opinion, the lodging expenses in question (as well as the expenses for meals and automobile expenses previously discussed) were “personal, living” expenses, not trade or business expenses within the meaning of section 162, and are therefore not deductible under the provisions of section 262.2
The basic allowances for subsistence and quarters are provided for in title 37 of the United States Code.3 Generally, it is provided that each member of a uniformed service who is entitled to basic pay is entitled to a basic allowance for subsistence and for quarters, depending on rank and length of service. Members of the Rational Guard are included in this group.4 Section 1.61-2 (b) of the Income Tax Regulations 5 specifically provides that such allowances are to be excluded from gross income.
Rev. Rul. 55-572,1955-2 C.B. 45, involved the tax status of the per diem allowances received by members of the uniformed services of the United States traveling on official business or temporary assignment away from their permanent post of duty, and also the question whether in computing allowable deductions for Federal income tax purposes, the basic subsistence and quarters allowances received by such members should be offset against expenses of transportation, meals, and lodging incurred by them in such travel status.
It was held that the per diem allowances are includable in gross income. It was further held that the expenses of transportation, meals and lodging incurred by such, members while in travel status, for Federal income tax purposes, should not be offset by their basic subsistence and quarters allowances in computing the amount of such expenses which are deductible under the provisions of sections 162(a) (2) and 62(2). The language of Rev. Rul. 55-572 is as follows:
¡The basic allowances for subsistence and quarters are granted by law independently of whether the member is required to travel and are entirely unrelated to expenses incurred in travel. In other words, the expenses incurred for travel, meals and lodging are not allocable to the basic allowances for subsistence and quarters and have no relation to the member’s statutory right to receive these basic allowances. Such members receive these basic allowances whether they are in travel status or not and the allowances are not considered as reimbursement for additional expenses incurred by reason of such travel. There appears to be no authority, therefore, for requiring members of the uniformed services to reduce their deductible travel expenses by the amount of such allowances in computing deductions for Federal income tax purposes.
In view of the foregoing, it is held that the per diem allowance in lieu of subsistence and the mileage allowance received by members of the uniformed services of the United States while in a travel status or on temporary duty away from their permanent stations are includible in the gross income of such members. Travel expenses incurred by such members which are deductible under the provisions of sections 162(a) (2) and 62(2) of the Internal Revenue Code of 1954 may be deducted in full without the necessity of offsetting the amount of basic subsistence and quarters allowances received against such expenses. As indicated, this Revenue Ruling in no way disturbs the long established nontaxable status of the basic subsistence and quarters allowances received by the members.
See also Commissioner v. Stidger, 386 U.S. 287 (1967), and Bercaw v. Commissioner, 165 F. 2d 521 (C.A. 4, 1948).
Rev. Rul. 63-64, 1963-1 C.B. 30, relied upon by respondent and apparently approved by tbe majority, involved the deductibility, for Federal income tax purposes, of expenses for travel, meals, and lodging, paid or incurred by a member of a Reserve component of the Armed Forces serving on temporary active duty under Pub. L. 87-117, Aug. 1,1961,10 U.S.C. sec. 263, and also whether the expenditures for meals and lodging, if otherwise deductible, were deductible in full or only to the extent that they exceeded the member’s basic subsistence and quarters allowances. It was held that such a member serving on temporary active duty pursuant to Pub. L. 87-117, supra, and who has a principal or regular place of business or employment which he has not abandoned and to which he will return after his period of service, is in a “travel status” while performing such temporary duty. It was further held that such a member is entitled to a deduction for expenses -incurred for meals and lodging at hi® official military post of duty “to the extent that such expenses exceed any nontaxable basic subsistence and quarters allowances received for those expenses.”
Rev. Rul. 63-64 lield that Rev. Rul. 55-572 is distinguishable notwithstanding the statement therein that the basic allowances for subsistence and quarters are granted by law independently of whether the member is required to travel and are entirely unrelated to expenses incurred in travel; that the expenses incurred for travel, meals, and lodging are not allocable to the basic allowances for subsistence and quarters and that such allowances are not considered as reimbursement for additional expenses incurred by reason of such travel. The reasons for its holding Rev. Rul. 55-572 distinguishable are stated in Rev. Rul. 63-64, as follows:
However, Revenue Ruling 56-672 deals with a member’s travel status in connection with his military duties while away from his permanent military post of duty. In the instant case, the reservist’s basic allowances are not received to cover traveling expenses connected with his military duties. They are received in connection with performing his duties at his principal military post of duty. Therefore, his expenses for meals and lodging there are allocable to his basic subsistence and quarters allowances to the extent that allowances are received for such expenses.
Section 265 of the Code, with the exceptions not here material, prohibits the deduction of an amount allocable to exempt income.
Since the basic subsistence and quarters allowances are exempt income, to allow a member of the Ready Reserve to exclude those allowances' and to also allow a deduction for the expenses for which the allowances are received, would result in a double tax benefit in violation of section 265 of 'the Code.
In my opinion the distinction drawn is not tenable. Both those in the permanent military service and reservists, while on active military duty, receive the basic allowances for subsistence and quarters as a matter of law, and in both instances such allowances are excluded from gross income.6
To allocate to or offset deductible travel expenses by the nontaxable basic allowances for subsistence and quarters would in effect be imposing a tax burden on such allowances. In this respect I consider Rev. Rul. 63-64 invalid and not controlling in the present case. Accordingly, I would hold that respondent erred in his determination that petitioner’s lodging expenses are to be offset by his basic allowances for subsistence and quarters.
The question remains, however, whether petitioner’s lodging expenses are otherwise deductible. This depends upon whether he was in a “travel status” while performing the tour of active military duty at Fort Knox. In my opinion he was not and the lodging expenses were a part of his “personal, living” expenses which are not deductible under the provisions of section 262.
The facts of the present case differ from those involved in Rev. Rul. 63-64. There a member of the Ready Reserve was called to active duty pursuant to the provisions of Pub. L. 87-117, which empowers the President to order members of the Eeady Reserve to active duty. His service was under official orders and he had no choice in the matter. In the present case, petitioner was not required to engage in a tour of duty under the provisions of Pub. L. 87-117 or any similar statute. Eather, he chose to engage in a tour of duty at the Reserve Officers Training School at Fort Knox in order that he might “qualify for promotion.” Fort Knox was his designated post of duty and he was not in “travel status” while there. Petitioner’s lodging expenses while at Fort Knox were “personal, living” expenses and he is not entitled to a deduction for such expenses. Section 262. Cf. Commissioner v. Stidger, supra; Bercaw v. Commissioner, supra.
The fact that petitioner was reimbursed for one round trip between his home in LaVergne and Fort Knox does not require a different conclusion. Section 402 (a) (2) and (3), 37 U.S. Code, authorized payment of transportation expenses from his home to his first duty station and from his last duty station to his home.
Pointing to the fact that petitioner’s principal employment was as postmaster at LaVergne, to which he expected to, and did return after completing his military service at Fort Knox, the majority held that petitioner was “away from home” while at Fort Knox within the meaning of section 162(a) (2), and entitled to deduct traveling expenses, including expenses for meals and lodging incurred while there, which were not reimbursed.
As authority for this holding the majority cites Joseph H. Sherman, Jr., 16 T.C. 332 (1951), and Walter F. Brown, 13 B.T.A. 832 (1928),
In Brown, the taxpayer was engaged in the active practice of law in Toledo, Ohio, and was appointed Chairman of the Congressional Joint Committee on Reorganization of Executive Departments. He spent about 2 weeks of every month from May to December 1921 in Washington, where the work of the committee was done. It was held that the taxpayer’s expenses for travel to and from Washington, and for his meals and lodging while there were deductible from his gross income as “ordinary and necessary expenses incurred” in carrying on a trade or business. Since the taxpayer was only required to be in Washington for approximately 2 weeks out of each month, his travel to and from Washington was not only related to, but was a necessary part of the performance of his duties as chairman of the committee. The result might have been different had his services as chairman required his presence in Washington during all of the period from May to December. Cf. George W. Lindsay, 34 B.T.A. 840 (1936); S.M.R. O'Hara, 6 T.C. 841 (1946). See also Leon Falk, Jr., 15 T.C. 49, 57 (1950); Ney v. United States, 77 F. Supp 1005 (1948), affd. 171 F. 2d 449 (C.A. 8, 1948), certiorari denied 336 U.S. 967.
In Joseph H. Sherman, supra, the taxpayer owned a home and lived with his family in Worchester, Mass. For several years, including the taxable year 1945, he had been employed by a company engaged in the manufacture of plastic products as production manager and purchasing agent. In 1945, while still so employed, he formed and operated, as sole proprietor, a sales company in New York City, which handled approximately 80 percent of the production of the plastics company. He maintained a mailing address in New York where he picked up letters from customers, but had no office and no employees there. It was his practice to call on .those from whom he had received letters and all sales were due entirely to his personal efforts. While in New York he stayed at a hotel. The opinion does not disclose where he kept his files, conducted his correspondence, or arranged for the supplying of the products which he sold by the plastic company.
This Court held that the taxpayer’s “home” was Worchester and that his New York “traveling expenses (including the entire amount expended for meals and lodging) ” were deductible. In connection therewith and in distinction of Commissioner v. Flowers, 326 U.S. 465, where the taxpayer’s residence was in a place other than where he was engaged in a trade or business, the Court stated:
This Court has heretofore recognized that a taxpayer may have more than one occupation or business, and has held that where it is shown that the taxpayer has two occupations which require him to spend a substantial amount of time in each of two cities, he is entitled to the deduction of traveling and other ordinary and necessary business expenses incurred in connection with attendance upon the one removed from his residence.
Five Judges of the Court dissented.
The last of three conditions set forth by the Supreme Court in Commissioner v. Flowers, supra, was as follows:
(3) The expense must be incurred in pursuit of business. This means that there must be a direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer. Moreover, such an expenditure must be necessary or appropriate to the development and pursuit of the business or trade.
In a dissenting opinion in the Sherman case, four of the judges expressed the view that under the concept of a “business home” prescribed by the Supreme Court in Commissioner v. Flowers, supra, “there should be allowed only business expenses at such place or in pursuance of business in connection with that place.”
Insofar as the Sherman case holds that where a taxpayer has two occupations which require him to spend a substantial amount of time in each of two cities, he is entitled to the deduction of traveling expenses, including the amount expended for meals and lodging, incurred in connection with his attendance in the city removed from his resi-den.ce, I respectfully disagree and would not follow tire Sherman case in the present proceeding.
In my opinion, where, as here, a taxpayer travels between two places in which he is engaged in separate unrelated employments or businesses, neither of which requires that he travel in connection with the performance of the duties of such employment or business, the question of being “away from home” is not crucial. This, in substance, was the holding of this Court in Douglas A. Chandler, 23 T.C. 653 (1955).7 See 1 Mertens, Law of Federal Income Taxation, sec. 2.08, p. 34, (1969 rev.). In my opinion, the rationale of this Court’s decision in the Chandler case is applicable here.
The second issue involves the deductibility of automobile expenses incuiTed by petitioner on weekend round trips between Fort Knox, Ky., and LaVergne, Tenn.
The determination of this issue depends upon whether the expenses in question were ordinary and necessary expenses incurred in carrying on any trade or business as provided by section 162(a), or in connection with the performance of services as an employee as provided by section 62(2) (B) or (C).8
Petitioner’s position is that the weekly trips were directly related to the performance of his duties and responsibilities as postmaster of the U.S. Post Office at LaVergne and are therefore deductible.
Kespondent’s position is that the deductions claimed should not be allowed because “it has not been established that the weekend trips were made in the pursuit of petitioner’s trade or business, his employment as postmaster of the LaVergne Post Office.” Specifically respondent contends that petitioner’s church activities, in particular the fact that he taught a Sunday school class each Sunday morning indicates that his primary purpose in returning to LaVergne each weekend was personal. I agree with the majority that there is no merit in the latter argument. The fact that petitioner attended church and taught a Sunday school class while at home is not sufficient to establish that tliis was the primary purpose for his returning- to LaVergne each weekend.
It does not follow, however, that the expenses incurred in making such weekly trips were ordinary and necessary expenses incurred in carrying on a trade or business or in connection with the performance by him of services as an employee, as provided 'by section 62(2) (B) and (0), and section 162(a) referred to therein.
As postmaster at LaVergne, petitioner was an employee of the U.S. Post Office Department. Cf. J. Rene Harris, 22 T.C. 1118 (1954). There has been no showing that the performance of his duties as postmaster required him to travel outside the area served by the LaVergne post office and it may reasonably be assumed that there were no such requirements. His absence from LaVergne was a matter of his own choice. The fact that while on leave he attended a Beserve Officers Training School does not make the situation any different from what it would have been had he merely been on vacation. As was stated in the concurring opinion in S.M.B. O’Hara, supra: “making one’s self available for work in the place where it is normally conducted on a permanent basis is the personal problem of the worker, and expenses to accomplish that purpose are not made in the pursuit of business within section 23(a) (1) (A). Until that is done, the worker has not reported for duty and is pursuing the place of business rather than the business.” I would hold that the expenses in question were not ordinary and necessary expenses incurred in carrying on a trade or business or in the performance by Mm of services as an employee and, accordingly, are not deductible. Commissioner v. Flowers, supra.
The last issue involves the deductibility of $72.29 allegely incurred by petitioner for books and supplies used by him in connection with the Beserve Officers Training School at Fort Knox. Bespondent’s position is that the deduction therefor is not allowable for the reason that “it has not been established that the amount claimed was actually expended.” At the trial petitioner testified: “I have some receipts showing that I bought $72.29 worth of books and supplies from the book store.” None of the receipts mentioned were offered in evidence.
The substantiation requirements of section 274(d) are not applicable to the type of expenditures here involved and, since respondent did not object to petitioner’s testimony and did not cross-examine bim as to such expenditures, petitioner’s testimony might normally be accepted as sufficient evidence of the expenditures. Arthur N. Blum, 11 T.C. 101, 110 (1948), affd. 183 F. 2d 281 (C.A. 3, 1950). Under the circumstances of this case, however, I think something more was required of petitioner. On tlieir return for 1967, petitioners claimed deductions for books and supplies totaling $81.67, as follows:
Pointer for class-$!• 60
Book Store Fort Knox for school supplies (I have receipts)— 16. 72 Attache case to carry books and materials to class-IS. 45
Deductions for these items were allowed by respondent. Since petitioner offered no evidence as to the other items included in the $72.29 claimed, I agree that he has not sustained his burden with respect to this issue.
At the trial and on brief petitioner represented his deductible expenses arising out of or in connection with his military duty to be as follows :
Auto expenses — Port Knox to LaVergne (21 round trips)_,_ $798. 00
Auto expenses, Port ICnox_ 198. 00
Boots and Supplies_ 72. 29
Laundry (uniforms) (not in dispute)_ 92.40
Lodging (BOQ)_ 91. 80
Meals ($6 per dayX132 days)- $792. 00
Less subsistence allowance_ 263. 34 528. 66
Total - 1, 781.15
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.
37 U.S. Code secs. 402 and 403.
37 U.S. Code sec. 204.
See. 1.61-2 Compensation for services, including fees, commissions, and similar Items.
(b) Members of the Armed, Forces, Coast and Geodetic Survey, and Public Health Service, Subsistence and uniform allowances granted commissioned officers, chief warrant officers, warrant officers, and enlisted personnel of the Armed Forces, Coast and Geodetic Survey, and Public Health Service of the United States, and amounts received by them as commutation of quarters, are to be excluded from gross income.
* * *
However, the per diem allowance in lieu of subsistence and the mileage allowance received by such persons while in a travel status or on temporary duty awray from their permanent stations shall be included in their gross income.
See fns. 3, 4, and 5 supra.
Tlie Chandler case was reversed by the U.S. Court of Appeals for the First Circuit, 226 F. 2d 467 (1955). However, the First Circuit in Commissioner v. Bagley, 374 F. 2d 204 (1967), certiorari denied 389 U.S. 1046 (1968), in fn. 11, subsequently held that its decision in the Chandler case, in which it had followed the Sherman case, was “incorrect as a guide to the construction of section 162(a) (2).”
SBC. 62. ADJUSTED GROSS INCOME DEFINED.
For purposes of this subtitle, the term “adjusted gross income” means, in the ease of an Individual, gross income minus the following deductions :
****** *
(2) Trade and business deductions op employees.—
T*í £ * * !j! * *
(B) Expenses por travel away prom home. — The deductions allowed by part VI (sec. 161 and following) which consist of expenses of travel, meals, and lodging while away from home, paid or incurred by the taxpayer in connection with the performance by him of services as an employee.
(C) Transportation expenses. — The deductions allowed by part VI (sec. 161 and following) which consist of expenses of transportation paid or incurred by the taxpayer in connection with the performance by him of services as an employee.