dissenting: The difficulties encountered by Albert at Wagner suggest that the petitioner may have first decided to remove him from that school and to place him in a school like Valley Forge and that her work was undertaken in order to implement that purpose. If such were the case, I do not think that the statutory test of “expenses * * * incurred to enable the taxpayer to be gainfully employed” (see sec. 214(b)(2)) would be met. There is no indication in the findings of fact or the opinion of the majority as to how this essentially factual question would be resolved — a task presumably for the trier of the facts.
The legislative history of section 214 makes it clear that expenses such as are involved herein “must be for the purposes [sic] of permitting the taxpayer to follow a gainful employment.” See H. Rept. 1337, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess. 30 (1954). See also H. Rept. 1337, swpra at A60-A61; S. Rept. 1622, to accompany H.R. 8300 (Pub. L. 591), 83d Cong., 2d Sess. 220 (1954). Similar language is contained in section 1.214A-1(c)(1)(i), Income Tax Regs., which provides:
An expense will not be considered to be employment-related merely because it is incurred while the taxpayer is gainfully employed. Whether the purpose of the expense is to enable the taxpayer to be gainfully employed depends upon the facts and circumstances of the particular case.
See also the last sentence of section 1.214A-1(c)(3)(ii), Income Tax Regs.
In short, the threshold issue is whether petitioner incurred the expense of sending Albert to Valley Forge to enable her to work, or whether she worked because he was going to that school. Cf. Limpert v. Commissioner, 37 T.C. 447, 448, 450 (1961) (wherein we found that the sole reason that the taxpayer’s mother resided with the taxpayer was to care for the child and thus enable the taxpayer to be gainfully employed).1 Jungreis v. Commissioner, 55 T.C. 581, 593 (1970) (concurring opinion). See A. Feld, “Deductibility of Expenses for Child Care and Household Services: New Section 214,” 27 Tax L. Rev. 415,429 (1972). In an analogous situation, the taxpayer has been required to show that the expenses for which a deduction was claimed would not have been incurred in any event. E.g., Fausner v. Commissioner, 413 U.S. 838 (1973) (expenses of driving to work treated as personal expenses where taxpayer would have driven to work anyway even if he had not transported job-related tools and materials). Compare Zolnay v. Commissioner, 49 T.C. 389 (1968), and Reese v. Commissioner, 45 T.C. 407 (1966), affd. per curiam 373 F.2d 742 (4th Cir. 1967) (wherein it was determined that there was a threshold question as to whether payments to the taxpayer were a “scholarship” or “fellowship” which had to be answered before sec. 117 became applicable).
I recognize that my approach is a strict one and that it can be argued that my logic may be equally applicable to situations where child care expenses are claimed for household help. But the fact of the matter is that only the issue of boarding school expenses is before us, and I therefore leave to another day the extent to which my approach should be applied in other cases involving child care expense should respondent choose to argue that the threshold question I have elucidated should be extended beyond the boarding school situation. In this connection, I note that respondent’s existing regulations take a liberal view in respect of child care expenses where household help is involved.
Drennen, Simpson, and Sterrett, JJ., agree with this dissenting opinion.See also Bye v. Commissioner, T.C. Memo. 1972-57.