Cremona v. Commissioner

Stereett, J.,

concurring: It is now obvious that the position of this Court is that there is no valid distinction between an expense incurred in securing employment 'and in seeking employment; a distinction which at best 'had only been available to clairvoyants in tax law.

The effect of this decision is simply to accept the fact that Congress has expressed a willingness to encourage any expenses necessary to maintain an existing income-producing activity. By so doing it encourages activities which increase the revenue due the Federal Government. It does not follow from this, however, that Congress intended to lend its support to every money-making scheme conceived of by an employee.

The deductible expenses of any employee are circumscribed by his particular trade or business. For example, expenses related to changing one’s basic skills or incurred without an income-producing motive cannot be deemed to be incurred in an employee’s trade or business. In fact it may well be appropriate to consider the dominant motive of the taxpayer in incurring an asserted section 162 expense juSfc as the Supreme Court did in interpreting the taxpayer’s motive in making a loan in United States v. Generes, 405 U.S. 93 (1972).

Any fears that Pandora’s box, now surely hingeless so often has it been opened, has been breached by this decision and its progenitors may rest in peace. The courts have been, and remain, well-equipped to separate the wheat from the chaff.