dissenting: I respectfully dissent from the ultimate conclusion reached by the majority.
In so doing, I proceed from the same basic premise as did the majority: namely, “a taxpayer’s cost of commuting between his residence and his place of employment is a nondeductible personal expense.” While the Supreme Court, in Fausner v. Commissioner, 413 U.S. 838, 839 (1973), emphasized that horn-book rule of tax law, it added the following postscript:
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.
The facts in the instant case are a perfect illustration of when such an allocation can, and should, be made.
The circumstances are ideal because a revolver is to a policeman what a hammer is to a carpenter. A carpenter is required by his employer to bring his toolbox to work at his own expense. A policeman is required by the New York City Police Department to have his revolver on his person at all times while in the city. In each case, the requirement is imposed by the employer as a condition of employment. There is no personal element to the requirement; it is purely job-related.
Once the business necessity of an employee’s taking something with him to work is established, then any “additional expenses” (over his preferred means of transportation) incurred solely by reason of that necessity should, under the Supreme Court’s holding in Fausner, be deductible.
It is, of course, the taxpayer’s burden to show the increment in the cost of commuting to work attributable to the job-related requirement. The precise nature of the added expenditure is of no moment as long as the expenditure can be characterized as “ordinary and necessary.” Thus, it matters not whether the incremental cost is attributable to buying a trailer for the car to carry the tools or is attributable to taking a different route to work because of circumstances beyond the taxpayer’s control. Here, the taxpayer was prevented from taking the most direct and least expensive means of commuting to work by reason of New Jersey law.11 can envision a similar circumstance where a truck, carrying inflammable material, is limited by State law to the use of certain specific roads, thereby incurring additional expense. I would hold, therefore, that the petitioner incurred additional expense in getting to work due to a condition of his employment rather than his choice of where to live.
No doubt the question of determining the exact amount of the incremental job-related cost could be troublesome in many cases. See Coker v. Commissioner, 487 F.2d 593 (2d Cir. 1973). Here, that presents no problem since the majority has found as a fact “that petitioner would have commuted to work by using the bus and subway but for the necessity of carrying his service revolver.” It appears that, in this case, the cost of using the bus and subway to and from work would have approximated $3.20 per day. I would allow petitioner to deduct any expense in excess of that amount incurred in commuting to work. Sec. 162, I.R.C. 1954.
Wiles and Wilbur, JJ., agree with this dissenting opinion.We assume that the taxpayer could not get a permit to carry his revolver while in New Jersey.