dissenting: I dissent because the majority fails to follow a principle now well established in cases involving traveling expenses. Two types of these cases have arisen. The difference between the two types is illustrated by comparing the case of George W. Lindsay, 34 B. T. A. 840, and the case of Walter F. Brown, 13 B. T. A. 832. Lindsay, who continued to live in Brooklyn, was elected to Congress. It was stipulated that he had only one income-producing business and that was being a Representative in Washington. It was held in that case and others cited in the majority opinion that a taxpayer who has only one business and who does not choose to live in the city where that business is located is not entitled to a deduction for expenses of traveling to and living in the city where his business is conducted. Other examples are cited in the majority opinion including the Bixler and Flowers cases.
The petitioner in the Brown case, a practicing lawyer in Toledo, Ohio, accepted appointment as chairman of a Congressional Joint Committee on Reorganization of Executive Departments at an annual salary of $7,500. It was understood that he could continue his law practice, provided it did not interfere with his new duties. All of the meetings of his committee were held in Washington, where he had to be for about two weeks out of each month. He rented an apartment there on an annual basis. He was allowed a deduction for his fares between Toledo and Washington, for his meals and lodging* in Washington, and for telegrams, telephone, and other miscellaneous expenses made necessary by the fact that he was conducting two businesses, each in a separate city. The report does not show and does not turn upon which business was more productive, time consuming, or important. The Commissioner argued that Washington was the petitioner’s home while he was chairman of the committee and, therefore, he did not have any traveling expenses incident to either business. We pointed out that the petitioner would be entitled to deduct some expenses regardless of whether he made his home in Washington or Toledo, and since he divided his time between two occupations in the separate cities, he was entitled to a deduction for his Washington lodging and his other expenses mentioned.
It thus appears that cases in which a taxpayer has a business in one city only are entirely different from those in which he has a business in more than one city. Congress has not allowed any deduction for personal expenses incurred by a taxpayer in maintaining his residence at his place of business, but it has allowed a deduction for all expenses in addition to those if the additional expenses were incurred in earning additional income at another place of business. Chester D. Griesemer, 10 B. T. A. 386; Walter F. Brown, supra; Joseph W. Powell, 34 B. T. A. 655; affd., 94 Fed. (2d) 483; Harry F. Schurer, 3 T. C. 544. Cf. Charles G. Gustafson, 3 T. C. 998; Coburn v. Commissioner, 138 Fed. (2d) 763; Wallace v. Commissioner, 144 Fed. (2d) 407.
The present case is not distinguishable in principle from the cases just cited. The deduction claimed by this petitioner is the kind that Congress intended to allow and there is no sound reason for denying it. Cases can be imagined in which the Commissioner might be justified in disallowing a part of a deduction claimed where a taxpayer had business in two cities but chose to live in one, although the traveling expenses would have been materially less had he lived in the other. This is not such a case and the petitioner should not be whipsawed in that way. It is not claimed that her traveling expenses would have been less had she lived in Harrisburg and traveled to Wilkes-Barre. Regardless of whether her home could have been in Wilkes-Barre or had to be in Harrisburg, nevertheless, she was entitled under section 23 (a) (1) to deduct “traveling expenses (including the entire amount expended for meals and lodging) while away from home in pursuit of a trade or business.” If there is doubt as to whether her home should be one place or the other, she should be allowed to prove the amount of her expenses in Wilkes-Barre.
This petitioner has always lived in Wilkes-Barre, where, since her admission to the bar in 1913, she has been engaged in the active practice of law without interruption. It is perfectly clear from the record that this law practice was her own and that she was actively engaged in it at all times material hereto. She received an appointment to the cabinet of Governor James. That was a temporary occupation. She desired and intended to continue her law practice, which was her more permanent source of livelihood. She actually continued in the active practice of law in Wilkes-Barre, including appearances in court during the taxable years. She continued to obtain clients, to decide what should be done for them, and to be active personally in Wilkes-Barre actually doing this legal work. Her practice was substantial and she devoted a substantial part of her time to the conduct of this business, regardless of the amount of fees collected during the taxable years. This practice required her to continue to reside in Wilkes-Barre. She continued to reside there in her own five-room apartment. It is immaterial that a friend also continued to share that apartment rent-free. The petitioner had to spend additional money for lodging in Harrisburg in order to carry on her other business there. It would not be reasonable, under the circumstances of this case, to hold that her home for income tax purposes had to be in Harrisburg rather than Wilkes-Barre, even though she earned more income and spent more working days in Harrisburg than in Wilkes-Barre during these particular years. Suppose that she had earned more money in Harrisburg in one year and more in Wilkes-Barre in the other, would her home then have to shift from city to city, depending upon where she happened to earn more income within a particular year? It is sufficient here that she earned a substantial amount of income and spent a substantial part of her time in her practice in Wilkes-Barre and that she had a sound business reason for continuing her home there. Her Wilkes-Barre business was the more permanent and perhaps, for that reason, the more important of the two. Her lodging expenses in Harrisburg were in addition to her regular personal and living expenses in Wilkes-Barre. The motivating factors which led to these expenditures were the exigencies of business rather than her personal conveniences and necessities. The expenses related directly to her business and were incurred while she was away from home in earning income from a second business. The Government, which collects additional tax because of the two businesses, is only reasonable in allowing a deduction for the additional expenses of earning the additional income. The petitioner, like Brown, went to the seat of government on a temporary appointment while continuing a business at home.
Tukner, Kern, and Qpper, JJ., agree with this dissent.The amount claimed for lodging -was reduced because the evidence did not show the necessity or reasonableness of renting the lodgings on an annual basis instead of as they were actually needed. Here the individual items are not separately questioned.