concurring and dissenting: I agree with the majority that Jack E. Golsen, 54 T.C. 742 (1970), does not require us to follow the conclusion of the Third Circuit in Saunders v. Commissioner, 215 F.2d 768 (1954), for the reasons stated in the majority opinion. I also agree with the majority that the meal allowance must be included in petitionér’s income and is not excludable under section 119 of the Code. Section 119 is clearly concerned with “meals in kind,” which these are not;' the legislative history mandates such a conclusion. And, as stated in section 61(a) and recognized in Commissioner v. Glenshaw Glass Co., 348 U.S. 426 (1955), and Commissioner v. LoBue, 351 U.S. 243 (1956), gross income means all income from whatever source derived. Here petitioner had complete, unfettered discretion as to how the allowance would be used. Under these circumstances I do not believe it makes any difference whether the amount paid to petitioner was intended as additional compensation or was made to in some way accommodate the employer. It is taxable income under section 61 unless specifically excluded under some other provision in the Code.
But I respectfully disagree with the majority in its conclusion that the cost of petitioner’s meals are deductible only to the extent that they are eaten while away from home overnight, under section 162(a)(2). In my opinion petitioner’s cost of meals eaten while on active duty under circumstances which made him subject to call at all times should be considered ordinary and necessary expenses of his business of being a State trooper, deductible under section 162(a) to the extent he can substantiate the expenditures for that purpose. In other words I would not consider these to be travel expenses, but rather to be ordinary and necessary expenditures required as a part of petitioner’s duties, for the convenience of his employer.
“Over the years we have held on more than one occasion that a taxpayer may be in the trade or business of being an employee.” David J. Primuth, 54 T.C. 374, 377 (1970). Thus, I conclude that petitioner’s status as a New Jersey State trooper rose to the dignity of being a trade or business. In addition, I do not perceive the problem presented here to be whether petitioner’s meal expenses may be characterized as “ordinary and necessary” within the meaning of section 162(a). I assume that the expenses were “necessary” in the sense of being “appropriate and helpful,” and that they were “ordinary” in the context of “life in all its fulness,” Welch v. Helvering, 290 U.S. 111, 113, 114-115 (1933).
The inquiry here is whether sufficient nexus existed between these expenses and the “carrying on” of petitioner’s trade or business to qualify them for deduction under section 162(a), or whether they were in essence personal or living expenses and nondeductible by virtue of section 262, cf. Louis Drill, 8 T.C. 902 (1947). I consider the expenses to have a dual character, partly business and partly personal, and their tax treatment depends upon which aspect outweighs the other. Cf. George A. Papineau, 16 T.C. 130, 131 (1951).
I think it is clear that the circumstances under which petitioner was required to take his meals were established for a substantial noncompensatory business reason of the employer in order to have petitioner and other State troopers available for emergency call during the meal period. It is equally clear from the record that emergencies were reasonably expected to occur, and actually did occur, which required petitioner to perform his job during his meal period. In addition the record indicates that a substantial motive of petitioner’s employer in regulating its employees’ meals was to reduce markedly the amount of time its employees used for eating, so that the employees would have more time to devote to their duties.
In sum, under the narrow circumstances before us, I find that petitioner has made a sufficient showing of business necessity for eating his meals on the job to take his expenses therefor out of the ambit of section 262 and to qualify them for a deduction under section 162(a). As said in Arthur Benaglia, 36 B.T.A. 838 (1937), the meals were not eaten on the job for petitioner’s “personal convenience, comfort, or pleasure, but solely because he could not otherwise perform the services required of him.” I find that the eating of his meals while on duty and at the site of his duty was a necessary and required part of this petitioner’s business and the cost of those meals was ah ordinary and necessary expense of his business. The fact that personal needs of petitioner were also satisfied was an incident of his business. Cf. Gunnar Van Rosen, 17 T.C. 834, 838 (1951).
I believe the allowance of deductions to employees of amounts they can prove were spent for meals taken, of necessity, on the job is more compatible with the structure of our taxing system than the exclusion from income of the entire allowance received for subsistence. This finds support in section 62(2)(A) of the 1954 Code which, in defining “adjusted gross income,” permits an employee to deduct from gross income the deductions allowed by part VI (which includes section 162(a)) “which consist of expenses paid or incurred by the taxpayer, in connection with the performance by him of services as an employee, under a reimbursement or other expense allowance arrangement with his employer.”
I recognize that my conclusion may be inconsistent with the conclusions of this Court on this point in Charles H. Hyslope, 21 T.C. 131 (1953), and Robert H. Saunders, 21 T.C. 630 (1954), reversed by the Third Circuit, supra. However, I think there have been enough changes in the approach to the deductibility of employee expenses since those cases were decided to justify taking... another look at the application of our conclusions to the particular factual situation here involved.