Respondent determined deficiencies in petitioner’s Federal income tax as follows:
Year Deficiency
1972. $92
1973. 96
Due to concessions, the sole issue remaining is whether certain expenses incurred by petitioner during the years in issue are deductible under section 162(a)1 as ordinary and necessary business expenses.
FINDINGS OF FACT
Some facts were stipulated and are so found.
Petitioner Robert E. Cooper resided in Van Nuys, Calif., at the time his petition was filed.
During the years in issue petitioner was employed as a fireman by the Los Angeles Fire Department and was assigned to Fire Station 89 in North Hollywood, Calif., as his permanent duty post. As such, petitioner normally worked 24-hour shifts2 and was not permitted to leave the fire station on personal business while on duty.
Petitioner is governed in his employment by the orders of his immediate superiors at the fire station — the Fire Chief and the Board of Fire Commissioners (the board).
At one time the Los Angeles Fire Department was completely segregated, with individual fire stations uniformly manned by members of the same race. Sometime during the 1950’s the then mayor of Los Angeles and the city council duly ordered the board to integrate the City’s fire stations. In an effort to comply with this order, some fire stations were closed and their firemen reassigned to other duty posts. However, the black firemen who were reassigned to fire stations formerly manned by white firemen were forced to accept separate beds, lockers, and dining arrangements at their new duty posts.
In response to this form of discrimination, the board lawfully adopted rules and regulations requiring all firemen at each fire station to participate in a nonexclusionary organized mess at the station house, unless officially excused.
The only recognized ground for nonparticipation was a physical ailment, which had to be periodically verified by the City’s own examining physician. No other excuse relating to personal, religious, or ethnic considerations was acceptable.
As a fire department employee, petitioner was required to participate in the organized mess at his duty post, to the extent of paying his assessed portion of the cost thereof, for each 24-hour shift that he worked.
Petitioner objected to paying the amount assessed as his share of such cost for various nonracist reasons, including the fact that he was required to pay the money even though he was often away from the station on fire department business during the mess period. He relented, however, when threatened with disciplinary action, including his dismissal, if he refused to pay.
Participation in the mess by petitioner’s employer consisted of merely providing the basic facilities for the mess.
On his Federal income tax returns for each of the years in issue petitioner deducted the amount of $283, which represented his mandatory contribution to the organized mess, as an ordinary and necessary business expense.
OPINION
The sole issue presented is whether petitioner is entitled to deduct the required payment of his pro rata share of the cost of providing a nonexclusionary organized mess for the firemen at his place of employment as an ordinary and necessary business expense under section 162(a).
Section 162(a) provides in part as follows:
In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business * * *
We have previously held that a taxpayer may be in the trade or business of being an employee. David J. Primuth, 54 T.C. 374 (1970). Moreover, the fact that the expenses in question constituted a condition of petitioner’s employment renders them ordinary and necessary within the meaning of section 162(a). See Welch v. Helvering, 290 U.S. 111 (1933). Thus, the focal point of our inquiry is whether the expenses in question were nondeductible personal expenses under section 262,3 or whether they constituted business expenses which were directly and proximately related to the active conduct of petitioner’s trade or business, and therefore deductible under section 162(a).
Initially, we observe that many expenditures possess both personal and business attributes. In these situations placement of that often thin line which distinguishes a "personal expense” from a "business expense” depends primarily upon the facts and circumstances of each particular case. Cf. Robert J. Kowalski, 65 T.C. 44, 63 (1975) (Drennen, J., concurring and dissenting), revd. 544 F.2d 686 (3d Cir. 1976). For example, Rev. Rul. 75-316, 1975-2 C.B. 54, provides in part as follows:
The fact that a particular expense may under certain circumstances be a nondeductible personal expense does not preclude the deduction of such an expense as an ordinary and necessary business expense under other circumstances. * * *
For specific illustrations of this principle, see: sec. 1.262-1(b)(5), Income Tax Regs, (meals); Rev. Rul. 58-382, 1958-2 C.B. 59 (semiannual physical examination required as a condition of employment); James A. Kistler, 40 T.C. 657 (1963) (commuting expenses between two places of employment); Louis M. Roth, 17 T.C. 1450 (1952) (home telephone expenses); Foeoletini Alo, T.C. Memo. 1976-397 (shoes and gloves); Arnold Roy Bushey, T.C. Memo. 1971-149 (prescription safety glasses).
In this case petitioner is a fireman who works shifts of at least 24 hours in duration. He is not permitted to leave the fire station on personal business while on duty, owing to the nature of his employment. Petitioner is required to financially participate in the organized mess at the fire station as a condition of his employment. He pays the assessed amount under protest, as he is frequently unable or unwilling to physically participate in the mess. Furthermore, the requirement that petitioner pay the assessed amount was not established by his employer for the petitioner’s convenience or personal benefit. Rather, it was apparently established in ,'order to comply with the legal and moral obligations owed by the City to its minority employees. Thus, from a realistic point of view, the payments in issue were a matter of business necessity on the part of both petitioner and his employer.
In summary, upon consideration of the entire record, including the unusual nature of petitioner’s employment, the involuntary nature of the expense incurred, petitioner’s limited ability to physically participate in the mess, and his employer’s lack of intent to compensate or otherwise benefit petitioner by enacting the requirement, we find that the amounts in issue constitute business expenses rather than personal expenses.
In view of these findings, we conclude that petitioner’s payment of $283 in each of the years in issue was directly and proximately related to the active conduct of his trade or business.4 Accordingly, we hold that petitioner is entitled to the claimed deduction in the amount of $283 for each of the years in issue.5
Decisions will be entered under Rule 155.
Reviewed by the Court.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code of 1954, as amended.
Work shifts of 96 consecutive hours were sometimes necessary, and on one occasion petitions’- was required to work 5 consecutive days and nights, combating an exceptionally large fire.
SEC. 262. PERSONAL, LIVING, AND FAMILY EXPENSES.
Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses.
In reaching this conclusion we do not adopt any form of "but for” test. In fact, we have previously rejected such a test. See Ronald D. Kroll, 49 T.C. 557, 567 (1968).
Nor are we concerned that our decision today will encourage a multitude of unjustified deductions. Indeed, under circumstances which are distinguishable from the present case, we have held that similar expenses constituted nondeductible personal expenses. See Louis Drill, 8 T.C. 902 (1947); Frank J. Borsody, T.C. Memo. 1976-47; John M. Murphey, T.C. Memo. 1975-317; Ion Z. Josan, T.C. Memo. 1974-144; Bayard L. Moffit, T.C. Memo. 1972-187; Jess H. Taylor, a Memorandum Opinion of this Court dated June 24, 1952.
Respondent has not challenged petitioner’s substantiation of the claimed expenses.