concurring: I agree with the majority that petitioner is not entitled to any deduction for travel between his home and place of employment since it was for personal reasons that he chose his place of residence. However, I do not agree with any implication that might be present in the majority opinion that under certain circumstances petitioner would be entitled to a deduction because of the requirement that he have his service revolver with him at all times when he was in New York City.
Accepting the fact as found by the majority that because of New Jersey law petitioner could not carry his pistol through that State,1 I do not consider that this case falls within the “tool” reference made in Fausner v. Commissioner, 413 U.S. 838 (1973). The Fausner case (p. 839) states, insofar as here pertinent, as follows:
As the Court of Appeals indicated, Congress has determined that all taxpayers shall bear the expense of commuting to and from work without receiving a deduction for that expense. We cannot read sec. 262 of the Internal Revenue Code as excluding such expense from “personal” expenses because by happenstance the taxpayer must carry incidentals of his occupation with him. Additional expenses may at times be incurred for transporting job-required tools and material to and from work. Then an allocation of costs between “personal” and “business” expenses may be feasible. But no such allocation can be made here. [Fn. ref. omitted.]
In my view, the reference to “additional expenses” being incurred for transporting “job-required tools and material” in the Fausner case was to the cost of transporting the tools where an additional cost such as excess baggage or trailer rental was incurred. It does not relate to requiring a determination of the mode of transportation a taxpayer contends he may have used but rather to the mode of transportation that he actually did use.
Although I am willing to accept the conclusion of the trial judge even in a fully stipulated case such as this, I have great difficulty in understanding why petitioner was prohibited by New Jersey law from carrying a revolver through New Jersey. The parties stipulated that “New Jersey permits officers employed by governmental agencies outside the State of New Jersey to carry weapons in New Jersey only while engaged in official duties and upon prior notification to local police authorities” and “generally, New Jersey authorities issue gun permits only to those individuals with job requirements necessitating that they be armed in that state or to individuals who can establish other urgent need. Applications for gun permits are evaluated on their own merits.” This stipulation is obviously the stipulation of a legal conclusion. The parties did not stipulate whether, in fact, petitioner had applied for a permit and whether the State authorities had denied the application.
Sec. 2A.T51 — á3 of the New Jersey Statutes Annotated as applicable to the year here involved contains numerous exceptions to the prohibition against the possession and carrying of a pistol without a permit. The section of this statute to which the parties obviously had reference in their stipulation is subsection(s) which provides:
“Law enforcement officers employed by governmental agencies outside of the State of New Jersey who are engaged in their official duties provided that they have first notified the chief law enforcement officer of the municipality or the county prosecutor of the county in which they are engaged or the superintendent.”
However, subsec. (d) of this same statute provides an exception to the prohibition against carrying weapons without a permit as follows:
“The regularly employed members, including detectives, of the police department of any county or municipality or of any State, interstate, municipal or county park police force or of any county boulevard police force at all times, while within the State of New Jersey * * * ”
I would conclude from this statute, and have found nothing in the New Jersey law to persuade me to the contrary, that without any necessity of obtaining a permit from New Jersey, a regularly employed police officer of New York City, such as petitioner, would be exempt from the prohibition against carrying a pistol within the State of New Jersey.