dissenting: I respectfully dissent from the majority’s conclusion that petitioner’s expenses were “wholly personal.” I agree with Judge Sterrett that contained within petitioner’s expenses of traveling to and from work is a portion in excess of what petitioner would have otherwise necessarily incurred in commuting, and that excess is directly related to a requirement imposed by petitioner’s employer.1 See Fausner v. Commissioner, 413 U.S. 838, 839 (1973).
The majority opinion expressly declines to “pass upon the applicability of the concept suggested in Fausner.” Majority, supra at 882. In my view, the Fausner question should have been addressed fully, and, furthermore, should have been resolved in petitioner’s favor.2 We have never, before today, ended our inquiry in this type of case with the conclusion that a taxpayer chooses his place of abode and therefore cannot deduct employer requirement-based excess travel costs. See, for example, the analysis in Hitt v. Commissioner, 55 T.C. 628 (1971), and in Gilberg v. Commissioner, 55 T.C. 611 (1971).
It is obvious to me that petitioner incurred excess travel costs and that the excess was caused by his employer’s requirement. True, the amount of that excess will be a function of petitioner’s choice of residence, but that is always the case when such excess travel costs present themselves. For example, if a construction worker living 30 miles from his jobsite were required to tow a trailer of tools, would not his excess cost be less if he moved 20 miles closer to his jobsite, or completely eliminated if he moved into a house adjacent to the jobsite? The majority opinion, supra at 882, seeks to distinguish the long line of “tool” cases as applying only to “additional expenses for transporting job-related tools to work regardless of where [the taxpayer] lives.” However, as my example above illustrates, the “additional expense” could be eliminated or greatly reduced in almost every “tool” case. Thus, I remain unpersuaded that this case is different.3 Petitioner’s “additional expenses,” those over and above his reasonable commuting expenses, were caused by his employer’s requirement that petitioner have his gun with him when he entered New York City.4 Where he lived does not alter that requirement; it merely affects the amount of the excess which could range from zero. See Coker v. Commissioner, 487 F.2d 593 (2d Cir. 1973), cert. denied 414 U.S. 1130 (1974), on up.
I express no opinion as to the amount of petitioner’s deductible traveling expenses. Although I would certainly reach that issue were I writing for the majority, I see no reason to enter into a laborious analysis of calculating the excess amount at this time. It is clear from the record that no matter what bases of comparison are used, such as driving through New York versus driving through New Jersey or using public transportation through New York versus driving through New Jersey, petitioner did incur additional costs.5 Accordingly, I would hold that petitioner is entitled to some part of his claimed travel-expense deduction.
I base my dissent upon the facts as found by the majority including their finding that petitioner could not have obtained a permit to carry a gun through New Jersey.
In fact, the parties briefed this case almost exclusively on the Fausner issue.
I am also unconvinced by Judge Scott’s concurrence. In this case, it is not the mode of travel but rather the route of travel which is mandated by the employer’s requirement. If a true excess cost exists, it is irrelevant whether that excess exists due to mandated routes of travel or mandated means of travel. However, I do not necessarily agree with Judge Sterrett that we look to the taxpayer’s “preferred means of transportation” in order to calculate any excess.
In my view, petitioner’s excess travel costs were caused by his employer’s requirement even though the New Jersey law also affected petitioner’s route of travel. If it were not for the employer’s requirement, the New Jersey law on carrying guns would be irrelevant to petitioner.
Consider the case of a construction worker who must travel one of two equal-distance roads to his jobsite. He chooses road 1 because using road 2 would necessitate paying a $l-a-day toll charge. Suppose my worker’s employer imposes a requirement requiring that worker to carry his tools to and from work, which, in turn, necessitates that worker’s towing a trailer to and from work. Pursuant to that requirement and State law prohibiting trailers on road 1, petitioner must travel road 2 and incur the $l-a-day toll charge. Would not that $1 be deductible? I conclude that it would. When a combination of an employer requirement and an outside force causes an employee to incur expenses greater than his ordinary, reasonable commuting expenses, the excess should be deductible by the employee if the outside force’s applicability to the employee is caused by the employer’s requirement.
In fact, in almost every tool case it will be a combination of factors which lead to the employee’s incurring additional expenses. For example, if an employer requires a worker to have tools at the jobsite but the employer provides no tool storage place, it is both the employer’s requirement and the worker’s desire to have his tools left unexposed to weather and thieves that make the worker transport his tools to and from the jobsite.
However, I note that respondent, on brief, argued that if we held petitioner incurred deductible travel expenses, the deductible amount should be limited to the difference in cost between taking public transportation through New Jersey and taking public transportation, as much as possible, through New York. See also Rev. Rul. 75-380, 1975-2 C.B. 60.