dissenting: I respectfully disagree with the majority’s conclusion that the lodging furnished petitioner was not “on the business premises” of his employer within the meaning of section 119.
Generally, section 119 excludes from gross income the value of lodging furnished an employee if certain conditions are satisfied. One of these conditions is that the lodging must be located “on the business premises” of the employer. In this regard, the courts have developed two principal tests. Specifically, the phrase “business premises” has been construed to mean either (1) a place where the employer conducts a significant portion of his business or (2) where the employee performs a significant portion of his duties. Commissioner v. Anderson, 371 F.2d 59, 67 (6th Cir. 1966), revg. 42 T.C. 410 (1964); Dole v. Commissioner, 43 T.C. 697, 707 (1965), affd. per curiam 351 F.2d 308 (1st Cir. 1965); Lindeman v. Commissioner, 60 T.C. 609, 615 (1973). If, under the facts, either one of these two tests is met, the “business premise” requirement of section 119 is satisfied. In the instant case, I believe petitioner has met the former test, i.e., the lodging furnished him was located on a place where his employer performed a significant portion of its business.
As stated in the majority’s opinion, petitioner’s employer was the Canal Zone Government, or more precisely that branch of the Canal Zone Government charged with the enforcement of the Canal Zone laws. The question then is whether petitioner’s lodging was located on a place where the law enforcement branch performed a significant portion of its business.
In United States v. Barrett, 321 F.2d 911 (5th Cir. 1963), the taxpayer, a highway patrolman, excluded under section 119 certain meal allowances provided him by his employer. In opposing the exclusion, the Government, inter alia, argued that the meals were not consumed “on the business premises” of the employer. In rejecting this contention, the Fifth Circuit, to which this case is appealable, stated:
The Commissioner takes too narrow a view of what constitutes the “business premises” of the Mississippi Highway Patrol. The major “business” of this state law enforcement agency is obviously not confined to isolated station houses; rather, it covers every road and highway in the state twenty-four hours a day every day. In view of the special nature and functions of the highway trooper’s work, it is unrealistic to treat the employer’s place of business as limited to the state patrol headquarters. This criterion, therefore, is not decisive against the excludability of the sums here in question. [321 F.2d at 912.]
See also United States v. Morelan, 356 F.2d 199 (8th Cir. 1966).1
Consistent with the reasoning of the court in Barrett, it is obvious under our facts that the entire Canal Zone comprises the “business premises” of petitioner’s employer. This being so, and because the lodging in question was located on such premises, petitioner should be allowed to exclude its value in computing his gross income.
In its discussion of the highway patrolmen cases, the majority states:
We think that these decisions are inapposite here. In both Morelan and Barrett the police officers were on duty patrolling state roads in uniform, ate their meals at restaurants adjacent to the state roads, and were required periodically to call in.
How these factors make Morelan and Barrett distinguishable is unclear to me since the petitioner in the present case was a policeman, presumably wore a uniform, patrolled the Canal Zone, and was on call 24 hours a day.2
Furthermore, although the precise basis for its holding is not entirely clear, the majority appears to be placing undue emphasis on the fact that petitioner did not perform a meaningful portion of his duties at his residence. As I noted above, the two principal “business premise” tests are (1) where the employer conducts a significant portion of his business, or (2) where the employee performs a significant portion of his duties. In deciding whether the latter test is satisfied, the courts have generally focused on the activity of the taxpayer within the residence. See Anderson v. Commissioner, supra; Dole v. Commissioner, supra. However, where, as here, the lodging is located on a place where the employer conducts a significant portion of its business, the former test has been met and it is unnecessary to examine the employee’s activities within the residence. See Giesinger v. Commissioner, 66 T.C. 6 (1976).
Accordingly, I would hold that petitioner is entitled to exclude from gross income under section 119 the value of lodging furnished to him by his employer.
In United States v. Morelan, 356 F.2d 199 (8th Cir. 1966), on facts similar to those of United States v. Barrett, 321 F.2d 911 (5th Cir. 1963), the court stated at page 203:
Congress did not put geographic bounds on the business premises of an employer. * * *
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It is conceivable, plausible and believable, in the present Highway Patrolmen context, to call all state land the business premises of the state since the state can regulate, tax and exercise a great deal of control over such land.
While Commissioner v. Kowalski, 434 U.S. 77 (1977), changed the result in Barrett and Morelan with respect to cash allowances for meals, the Supreme Court’s decision did not affect the Fifth and Eighth Circuits’ holding that all State land constituted the business premises of the State.