dissenting: I disagree with the majority for two reasons. First, I do not believe that this Court as a matter of policy should override a position taken by the respondent which favors the taxpayer when it is not required to do so by the statute. Second, and more importantly, I do not believe that this Court can impose on a taxpayer a greater burden than to disapprove the respondent’s deficiency determination. See Baird v. Commissioner, 438 F. 2d 490 (C.A. 3, 1970).
In his notice of deficiency, the respondent explained in the following terms his reasons for disallowing the claimed transportation expense deduction of $2,963.40:
When your job at a new location is expected to last for an indefinite period and you cannot determine approximately when it will end, that location becomes your “tax home.” The cost of nonbusiness travel, meals and lodging while at your tax home is not a deductible expense.
* * * Cost of commuting between your residence and any business location within the area of your principal place of employment is not deductible.
Counsel for the respondent in his opening statement at the trial indicated that the Court’s determination of whether the expenses in issue were deductible transportation expenses or nondeductible commuting expenses depended on whether:
[the petitioner’s] employment in Norwalk and in Syosset is temporary, indefinite, or permanent. If found to be indefinite or permanent, no expenses at all can be taken, no matter what we determine the type of .travel to be. If we determine that it is temporary, a deduction can only then be allowed if he travelled outside of his general home area to the place of employment.
It was the respondent’s view on brief that as the petitioner was not temporarily employed his traveling was not for business reasons but was merely for his convenience and thus personal, nondeductible commuting expenses.
A decision limited to the issues as presented by counsel for the respondent would result in my view in a holding for the petitioner with respect to his expenses of traveling to and from Norwalk.
During the year in issue, the petitioner did not have more than a 6-month employment commitment from either Kollsman Instrument or the Norden Division. The petitioner refused regular employment with the fringe benefits attending such employment in favor of the higher salary available to employees who were willing to limit their period of employment to the term of a specific project or until a dollar limit was reached. The petitioner’s employment at both Kolls-man Instrument and the Norden Division obviously was temporary. Cf. Emil J. Michaels, 53 T.C. 269 (1969).
Although I find the second issue more difficult of solution, due primarily to the fact that the parties did not attempt to precisely delineate the general work area which would be embraced within the New York market, it is my opinion that the petitioner’s trips to Nor-walk involved traveling outside of the general home area of employment in the petitioner’s type of work. The petitioner’s employer, the Norden Division, recognized that Norwalk was not within that area as they paid the petitioner a travel allowance. In addition, it is clearly not normal or customary for a temporary employee to travel from the New York metropolitan area to Norwalk, Conn.
The responsibility for the administration of the tax laws has been delegated to the respondent. It has been his long-standing position that the determination of the deductibility of traveling expenses incurred in circumstances such as those presented by the instant case should turn on (1) whether the taxpayer’s employment was temporary and (2) whether that employment was located outside of the general home area of his employment.1 It is clear that other taxpayers have benefited from this position.2 Under sucli circumstances, I do not believe this Court should override a position that favors the taxpayer when it is not required to do so by the statute.
It is not, however, for that reason alone that I have refused to join the majority. In holding simply that the expenses were nothing but commuting costs, the majority avoided the issues as framed by the respondent and contested by the petitioner. In so doing, they have incorrectly imposed on the petitioner a greater burden than to disapprove the respondent’s deficiency determination. See Baird v. Commissioner, supra.
This position is illustrated by Rev. Rui. 190, 1953-2 C.B. 303. That ruling involved construction workers who lived and ordinarily worked at their trade on local construction jobs within the metropolitan area of a certain city. These workers had to travel some 18 miles to work at the construction site of a military facility. It was held that the workers could deduct their unreimbursed expenses for daily transportation as an ordinary and necessary expense incurred in carrying on their trade.
This position is only one of many that the respondent has taken in this area without specific statutory support. For example, in Rev. Rul. 54 — 497, 1954 — 2 C.B. 75, the costs of weekend trips home during a period of temporary employment away from home were held to be deductible to the extent they did not exceed either (1) otherwise deductible costs of meals and lodging had the employee remained at his post of duty on such off-duty periods, or (2) the reasonable and necessary expenses he would hare incurred in traveling between such temporary place of employment and his regular post of duty.