Cremona v. Commissioner

Tannenwald, /.,

concurring: I think it important to note that the majority decision herein effectively relegates to oblivion the attempt by respondent, after our decision in David J. Primuth, 54 T.C. 374 (1970), to breathe continued life into the seeking-securing distinction insofar as the deductibility of employment agency fees is concerned. See Rev. Rul. 71-308, 1971-2 C.B. 167.

In addition, rather than speculate broadly on the quantitative scope of legislative intention regarding expenses connected with an income-producing activity, I would prefer to have my position rest on the common understanding of the clause “ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business.” See my concurring opinion in David J. Primuth, 54 T.C. at 382.

The delineation of guidelines to avoid an unduly broad application of our approach herein is not an insuperable task. In the case of single-purpose expenditures, a simple comparison of the position which the taxpayer occupied before and after the anticipated change would suffice. See my concurring opinion in David J. Primuth, supra. Compare sec. 1.162-5(b) (3), Income Tax Eegs. In the case of dual- or multiple-purpose expenditures, the presence of a direct relationship and a dominant or primary motive would be the critical factors. Compare United States v. Generes, 405 U.S. 93 (1972); secs. 1.162-2 (b), 1.162-5 (d), and 1.162-5 (e), Income Tax Eegs.

Eatjm and Dawsojst, JJ., agree with this concurring opinion.