dissenting: I respectfully submit that McDonald v. Commissioner, 323 U.S. 57 (1944), does not compel the result reached by the majority. In McDonald the Supreme Court held that campaign expenses incurred by a State court judge, who was serving as an interim appointee, in seeking election for a full term were not deductible under the predecessor of section 162 (i.e., sec. 23(a) (1), I.R.C. 1939) on the ground that they were not sustained in the business of “being a judge but in tryvng to be a judge.” (Emphasis added.) See McDonald v. Commissioner, supra at 60. The Supreme Court further observed that the predecessor of section 212 (i.e., sec. 23(a) (2), I.R.C. 1939) was also not applicable.
In justifying its conclusion in McDonald the Supreme Court emphasized that there were strong public policy considerations for not allowing a deduction for campaign expenses incurred in running for public office and, therefore, that the sanctioning of such a deduction is more appropriately the prerogative of Congress rather than the judiciary.
The expenditures in McDonald and the instant case initially seem to be indistinguishable since the expenditures in both cases were incurred in the effort to attain public office. However, after closer examination of McDonald, I am convinced that the public policy considerations which operated to preclude allowance of the deduction in McDonald are not present in the case at bar. I agree that the judiciary should not intercede to permit a deduction for Federal income tax purposes of such a variable, discretionary item as campaign expenses incurred in running for public office. The authorization of such a policy theoretically could act as an inducement for wealthy people to offer themselves for public office. Accordingly, authorization of such a policy is appropriately the responsibility of Congress and not that of the judiciary. See McDonald v. Commissioner, supra at 63.
Nevertheless, the amount of petitioner’s filing fee was not subject to his individual discretion. Each contestant for office in the Georgia Democratic Party primary was required to pay an assessed fee to finance the estimated cost of conducting the primary election. Each contestant for the same office was assessed the same fee. Thus, since each contestant for the same office would be entitled to the same deductible amount, I believe that the public policy rationale underlying McDonald does not encompass items such as the instant filing fee.1 Accordingly, I am convinced that the allowance of the deduction of the instant filing fee would not frustrate sharply defined public policy. See Commissioner v. Tellier, 883 U.S. 687, 694 (1966); James B. Carey, 56 T.C. 477, 485-486 (Judge Simpson’s dissent) (1971), affirmed per curiam 460 F. 2d 1259 (C.A. 4, 1972), certiorari denied 409 U.S. 990 (1972).
As I read McDonald, the deductibility of the instant filing fee under section 212 is precluded only if the public policy considerations inherent in McDonald are also applicable in the instant case.2 Accordingly, since I have concluded that the public policy considerations of McDonald are not applicable in the instant case, and since petitioner’s filing fee was expended in an effort to attain an income-producing activity, I would permit the deduction of this item under section 212.
This conclusion is supported by this Court’s decisions in James B. Carey, supra; David J. Primuth, 54 T.C. 374 (1970); Leonard F. Cremona, 58 T.C. 219 (1972). In Carey this Court observed that—
in light of the additional fact that the actual majority in McDonald was obtained by a simple concurrence in result by Mr. Justice Rutledge, it is questionable whether the legal theory espoused in the opinion of the Court [i.e., the Supreme Court of the United States] has as wide an application as respondent would have us believe. Indeed, the Court itself indicated that the broad brush stroke of its opinion might be more apparent than real, when it stated that it would leave to this Court the “detailed analysis of the special circumstances of various ‘businesses’ and expenses incident to their ‘carrying on’ ” and the consequent determination of the “allowed or disallowed deductions.” See 323 U.S. at 65. It seems to us that the Court clearly left room for different results in different factual situations. Compare Caruso v. United States, 236 F. Supp. 88 (D.N.J. 1964). [Emphasis added. James B. Cary, supra at 480.]
I believe that the case at bar involves one of those different factual situations which justifies a result different from that in McDonald.
In Primuth and Cremona this Court concluded that employment agency fees were deductible under section 162 where the taxpayer is either successful (Primuth) or unsuccessful (Cremona) in his efforts to obtain a new position of a type similar to his present one. The public policy considerations that were applicable in McDonald and Carey did not preclude the deduction under section 162 in either Prvrrmth or Cremona. Analogously, I believe that these same public policy considerations are not applicable in the case at bar and thus should not preclude the deduction of petitioner’s filing fee under section 212.3
SteReett, J., agrees with this dissent.I recognize that the record does not clarify whether each participant in the primary was assessed a uniform, pro rata fee, or whether the amount of the fee was contingent upon the significance of the specific office within the State political structure. Since the issue of whether the filing fee was based on a sliding-scale method is not specifically before us in the instant case, I will not consider its impact at this time.
In McDonald v. Commissioner, 323 U.S. 57 (1944), the Supreme Court expressly stated that running for the office of a State court judge did not constitute the trade or business of being a judge. See McDonald V. Commissioner, supra at 59-60. Therefore, since petitioner was also running for election as a judge and since this activity does not constitute a trade or business, petitioner’s filing fee is not deductible under sec. 162.
Since I have concluded that petitioner’s filing fee is deductible under sec. 212, I do not find it necessary to consider petitioner’s alternative argument that the filing fee is deductible as a State tax under sec. 164.