concurring: In the opinion of the Court the deduction claimed is disallowed primarily on the basis of a conclusion that petitioner’s Harrisburg expenses were not “traveling expenses” incurred by her while away from “home,” “home” being held to be the place of her principal business, namely, Harrisburg. I agree that the disallowance of the deduction is correct, but for the reason that, in my view, the expenses in question were not “traveling expenses” incurred in the pursuit of business, regardless of whether petitioner’s “home” should be deemed to be in Harrisburg or elsewhere. I, therefore, think that the conclusion herein should not be made dependent in part or at all on the location of petitioner’s “home.”
The expenses here involved were not, in my opinion, business expenses in connection with petitioner’s duties as Secretary of the Commonwealth and it can not seriously be contended that such expenses had any connection whatever with petitioner’s business in Wilkes-Barre or with any other business conducted by her.
The criteria for determining the issue here presented are found in Commissioner v. Flowers, 326 U. S. 465. These criteria render unavailing any tests laid down by this or other courts which are not in conformity therewith.
In the Flowers case, the Supreme Court stated that the deductibility of traveling expenses depends upon three conditions, as follows:
(1) The expense must be a reasonable and necessary traveling expense, as that term is generally understood. This includes such items as transportation fares and food and lodging expenses incurred while traveling.
(2) The expense must be incurred “while away from home.”
(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.
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* * * Failure to satisfy any one of the three conditions destroys the traveling expense deduction.
It was held in that case that condition number three had not been met and the Court therefore found it unnecessary to consider whether the expenses in question were incurred “while away from home.” In discussing whether the taxpayer’s expenses at Mobile had been incurred in pursuit of business, the Supreme Court said:
The facts demonstrate clearly that the expenses were not incurred in the pursuit of the business of the taxpayer’s employer, the railroad. Jackson was his regular home. Had his post of duty been in that city the cost of maintaining his home there and of commuting or driving to work concededly would be non-deductible living and personal expenses lacking the necessary direct relation to the prosecution of the business. The character of such expenses is unaltered by the circumstance that the taxpayer’s post of duty was in Mobile, thereby increasing the costs of transportation, food and lodging. Whether he maintained one abode or two, whether he traveled three blocks or three hundred miles to work, the nature of these expenditures remained the same.
I find no basis in the language just quoted or elsewhere in the Flowers opinion for concluding that a different result would have been reached if the taxpayer there had conducted a separate business in Jackson, the town of his permanent residence. On the contrary, it is unequivocally stated that:
Travel expenses in pursuit of business within the meaning of § 23 (a) (1) (A) could arise only when the railroad’s business forced the taxpayer to travel and to live temporarily at some place other than Mobile, thereby advancing the interests of the railroad. * * *
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.
In the instant case it is obvious that expenses incurred by petitioner while attending to her duties as Secretary of the Commonwealth were not attributable to her business at Wilkes-Barre, and vice versa. Her two businesses were separate and distinct. To perform her duties as Secretary of the Commonwealth required her presence in Harrisburg on a permanent basis. If she traveled from Wilkes-Barre to Harrisburg in order to be available for performance of those duties, such travel was occasioned by petitioner’s personal necessities or conveniences and was no more motivated by the demands of the business than is the travel of any person to get himself to a fixed post of duty. Such travel is in exactly the same category as that of the taxpayer in the Flowers case and is not “in the pursuit of a trade or business'’ within section 23 (a) (1) (A).
I thus view the reasoning of the Flowers case, as directly applicable to the facts here and think that the conclusion in the instant case should be based exclusively on the proposition that the expenses sought to be deducted were not business expenses. By the reasoning employed in the Flowers case the traveling expense provision of the statute is interpreted in the light of the fundamental considerations governing the deductibility of business expenses, and the intended segregation therefrom of personal and living expenses is accomplished.
It appears to me inescapable that insuperable difficulties may arise in attempting to apply to future cases the principle constituting the primary basis of the conclusion in the opinion of the Court. The application of such principle where businesses conducted in separate communities are involved will often make the deductibility of the expenses dependent upon the purely fortuitous circumstances of which of the businesses yields greatest revenues or holds prospect of greatest permanency. Such circumstances have little relation to whether the deductions claimed represent business or personal expenses and decisions based upon them will, I fear, defeat rather than effectuate the statutory intent. For instance, if the proceeds of the businesses are substantially equal, are we-arbitrarily to select the place where one of them is conducted as the “home” of the taxpayer or is the taxpayer to have more than one “home” ? Is the taxpayer’s “home” to shift as the relative importance of the respective businesses may alternately change? In my view, these questions are not susceptible of consistent solution by the application of the basic reasoning of the opinion of the Court.
Smith, ArNOld, DisNey, and Harron, JJ., agree with-the above.