dissenting: I dissent from the majority’s conclusion petitioner was not able to deduct expenses he incurred in 1972 traveling to the Democratic National Convention and to various meetings of the National Black Political Conference. I believe petitioner’s expenses connected with both conventions were ordinary and necessary expenses incurred in his trade or business.
The majority essentially adopts respondent’s position these expenses were “political in nature,” without clearly stating just what that means. The truth of the matter is that the term “political” describes many things. Petitioner was a Member of the U.S. House of Representatives. The term “political” describes petitioner’s activities as a legislator, as a policymaker, as the representative of his constituents, as a candidate, and as a member of his political party. Together, all of these activities made up petitioner’s “trade or business.” However, because these different roles have different tax consequences, each may be considered as a separate “trade or business” for tax purposes.
The Supreme Court adopted this approach in McDonald v. Commissioner, 323 U.S. 57 (1944). In McDonald, the taxpayer ran for reelection as a judge. He paid $8,000 to his political party as “an assessment” in return for the party’s support and incurred some $5,000 of customary campaign expenses. Denying the deductibility of these expenditures, the Supreme Court distinguished the taxpayer’s dual roles as an elected official and as a candidate, treating each as a separate job: “He could * * * deduct all expenses that related to the discharge of his functions as a judge. But his campaign contributions were not expenses incurred in being a judge but in trying to be a judge for the next ten years.” (323 U.S. at 60.) The Court went on to hold that, in light of the complex public policy issues involved, the deduction of campaign expenses should not be allowed absent a specific directive from Congress. The case also suggests, in dicta, that payments made purely to support one’s political party should be treated in the same way as campaign expenses. 323 U.S. at 60. By its silence, Congress has long since acquiesced in the result of McDonald, and it is now beyond question that campaign expenses are not deductible. Martino v. Commissioner, 62 T.C. 840 (1974); Nichols v. Commissioner, 60 T.C. 236 (1973), affd. per curiam 511 F.2d 618 (5th Cir.), cert. denied 423 U.S. 912 (1975). Since, however, McDonald makes it clear politicians wear many hats, the above analysis does not resolve the case at bar.
Petitioner attended two conventions. Section 1.162-2(d), Income Tax Regs., provides:
The allowance of deductions for such expenses [“expenses paid or incurred by a taxpayer in attending a convention”] will depend upon whether there is a sufficient relationship between the taxpayer’s trade or business and his attendance at the convention or other meeting so that he is benefiting or advancing the interests of his trade or business by such attendance. If the convention is for political, social or other purposes unrelated to the taxpayer’s trade or business, the expenses are not deductible.[1]
Thus, the issue is whether attendance at a convention furthers the taxpayer’s trade or business. As noted by the majority, the second sentence of the regulation quoted above in no way denies deductions for political conventions per se; the sentence merely restates the requirement that attendance advance the taxpayer’s trade or business. Majority opinion, supra at 892; see Darling v. Commissioner, 4 B.T.A. 499 (1926).
Accordingly, resolution of the issue presented in this case depends upon what petitioner actually tried to accomplish by attending the Democratic National Convention and the National Black Political Conference. If petitioner was pursuing legislative aims, his expenses were incurred in his trade or business as a legislator and were therefore deductible.2 If, on the other hand, petitioner’s primary purpose was to advance his own political career or to enhance the electoral prospects of his party, then his expenses would be campaign related and nondeductible. It is important to recognize that petitioner’s attendance at the Democratic National Convention as a delegate is not determinative. In Rev. Rul. 59-316, 1959-2 C.B. 57, respondent expressly stated his position that—
An individual who can bring his case within the provisions of section 162(a) of the Code by making a factual showing that he attended the convention in connection with his own business interests and is, therefore, entitled to a business expense deduction is not deprived of the deduction in the event he should be elected or appointed a delegate and, thus, as an incident of such attendance, serves the organization electing or appointing him. [1959-2 C.B. at 58. Emphasis added.]
In short, the question is not whether political conventions are “political” — the relevant issue is what was petitioner doing there.
Moreover, this is precisely the way in which respondent analyzed this issue in Rev. Rul. 76-64, 1976-1 C.B. 45, which deals with a “Legislator’s expenses of attending political convention.” The taxpayer therein was an elected legislator attending his political party’s biennial convention as a participant on a panel concerning law enforcement. Respondent discussed the issue as follows:
In the instant case, the primary purpose of the convention was to plan strategy and advance the political programs of the party. Thus, the legislator’s attendance at the convention as a participant on the law enforcement panel was related to the formulation of the political party’s policy on specific issues and not directly connected with the taxpayer’s business as a legislator.
The salient factor relied upon above is not the “political” nature of the convention. The ruling focuses on the purpose of the legislator’s participation. If he had been doing something else, the result presumably could have been different.
All of the facts found by the majority in the instant case lead me to conclude petitioner was pursuing legislative goals at both conventions he attended. The purpose of the National Black Political Conference was “to make an assessment of the concerns of black citizens in the United States and to develop a national black agenda regarding those concerns.” Majority opinion, supra at 889, 896. Petitioner testified that the national black agenda was used as a basis for legislation by the Congressional Black Caucus. The agenda was presented to the Platform Committees of both major political parties. In other words, the National Black Political Conference wanted its agenda to be part of the platform of whichever party won. Clearly, the objective was to commit both parties to minority legislative goals — not to support either party in the general election. Therefore, to my mind, petitioner’s participation as one of the co-conveners of the National Black Political Conference was directly related to his trade or business as a legislator. Indeed, promoting minority interests was particularly appropriate for petitioner, in light of both his constituency and his position in the House as its senior black Member.
Although the situation is somewhat more complex, I would reach the same result with respect to petitioner’s expenses for attending the Democratic National Convention. Under section 1.162-2(b), Income Tax Regs., traveling expenses “are deductible only if the trip is related primarily to the taxpayer’s trade or business.” (Emphasis added.) Thus, petitioner was entitled to deduct all of his traveling expenses if his primary purpose was related to his trade or business of representing his constituents as a legislator. I agree with respondent that the purpose of the 1972 Democratic National Convention was to nominate and to showcase for the upcoming election the party’s Presidential and Vice Presidential candidates. But the issue in this case concerns the nature of petitioner’s involvement. Petitioner’s primary role was to represent the interests of minorities at the convention. Petitioner appeared before the Platform Committee to support the agenda published by the National Black Political Conference. Respondent admits on brief, “As a result of the taxpayer’s activities at these conventions and meetings, particular planks in the 1972 Democratic Party platform were adopted.” Respondent’s Brief at 13.1 think it is beyond serious dispute that party platforms, despite their “political” nature, have a fundamental role in the legislative process. Moreover, as noted above, the National Black Political Conference wanted its agenda incorporated in both party platforms. I would therefore conclude that petitioner’s primary purpose at the Democratic National Convention was directly related to his trade or business.
Finally, I do not see that section 162(e), I.R.C. 1954, or the regulations thereunder have anything to do with the issues presented herein. Section 162(e) deals with lobbying expenses, that is, appearances before or submissions to a committee or Member of Congress or other legislative body in connection with legislation or proposed legislation of interest to the taxpayer. However, petitioner was not appearing before a legislator; he was a legislator. The issue is not whether proposed legislation was of direct interest to petitioner’s trade or business; proposing legislation was his trade or business. Nothing in the legislative history of section 162(e), or, frankly, the majority opinion gives the slightest indication that the section applies to the expenses of an elected legislator. Indeed, if petitioner’s activities at the conventions could somehow be treated as “appearances with respect to legislation,” it would seem to follow that petitioner was pursuing legislative goals in his trade or business, and not just party politics.
I believe the majority has erroneously denied petitioner the deduction of expenses incurred by him in the course of formulating, proposing, and enacting legislation. As I have indicated, I think the majority went astray by failing to examine critically the term “political.” The result reached by the majority, that all “political” expenses are nondeductible, seems to me to run counter to both commonsense and the express statutory mandate of section 7701(a)(26), which provides that holding public office is a “trade or business.”
Wilbur, J., agrees with this dissenting opinion.Accord, majority opinion, supra at 892; Rev. Rul. 59-316, 1959-2 C.B. 57, clarified Rev. Rul. 63-266, 1963-2 C.B. 88; Reed v. Commissioner, 35 T.C. 199, 202 (1960); Ellis v. Commissioner, 15 B.T.A. 1075 (1929), affd. 50 F.2d 343 (D.C. Cir. 1931); Shutter v. Commissioner, 2 B.T.A. 23 (1925). See Coughlin v. Commissioner, 203 F.2d 307 (2d Cir. 1953), revg. 18 T.C. 528 (1952).
“Respondent does not dispute the fact that travel expenses incurred by an elected legislator to attend certain meetings with constituents for the purpose of gathering information with respect to pending legislation would be within the performance of his duties as a legislator, and as such, would be deductible as ordinary and necessary business expenses.” Respondent’s Reply Brief at 5. See Rev. Rul. 65-224, 1965-2 C.B. 42 (State legislator’s expenses in connection with proposed legislation were deductible).