dissenting: In 1972, the year to which the issues before us relate, petitioner Charles C. Diggs, Jr. (hereinafter sometimes referred to as Diggs), was a Member of Congress — in particular, he represented the Thirteenth Congressional District of Michigan in the House of Representatives. The issues before us relate to expenses paid by Diggs in connection with his attendance that year at meetings of the National Black Political Conference and his attendance at the Democratic National Convention.
The majority hold that both categories of Diggs’ expenses are nondeductible because Diggs’ activities at the meetings and the convention “were essentially political in nature” and because they were “not sufficiently related to the functions of his Office as Congressman.” Majority opinion, supra at 900.
I would hold that Diggs’ expenses in connection with his attendance at the meetings of the National Black Political Conference are deductible as ordinary and necessary expenses of his trade or business as a Member of Congress. I would hold that Diggs’ expenses in connection with his attendance at the Democratic National Convention are nondeductible because petitioners have failed to show that such attendance was not inextricably intertwined with political campaigns on behalf of candidates for public office, following McDonald v. Commissioner, 323 U.S. 57 (1944), and its progeny. I would reject the test of whether the activities were “essentially political in nature.” As a result, I respectfully dissent.
I. In General
Diggs’ work as a Member of Congress in 1972 constituted a trade or business (sec. 7701(a)(26)1), the ordinary and necessary expenses of which are deductible (sec. 162(a)2).
The nature of this trade or business may be gleaned from an inspection of Article I of the U.S. Constitution. The breadth of the subjects dealt with in this trade or business is largely set forth in the imposing list of clauses in section 8 of this article. In aid of its legislative function, the Congress has the power to inquire, and to force compliance with its inquiries. See Congressional Research Service of the Library of Congress, The Constitution of the United States of America: Analysis and Interpretation, S. Doc. 92-82, pp. 79-96 (1973), and materials cited therein.
I have found no legal imperative forbidding individual Members from learning about the problems or concerns of their constituents or others; such efforts by a Member may constitute activities conducted in the course of the Member’s trade or business qua Member. Indeed, we have recently held that it is part of the trade or business of a State legislator to discuss the issues with, and ascertain the needs of, the voters in his district. Chappie v. Commissioner, 73 T.C. 823, 833 (1980).
In McDonald v. Commissioner, supra, the Supreme Court declared that expenses of an officeholder (a Pennsylvania State judge) in seeking reelection3 were not expenses of the officeholder’s trade or business under section 23(a)(1)(A) of the Internal Revenue Code of 1939 (the predecessor of sec. 162(a)). The Court drew a distinction between “expenses incurred in being a judge” and expenses incurred “in trying to be a judge for the next ten years.” (323 U.S. at 60.)4
We may take it that performance of the functions of one’s public office is apt to affect one’s likelihood of reelection, especially where the officeholder seeking reelection must face the voters’ verdict every 2 years (U.S. Const. art. I, sec. 2). Nevertheless, it is clear that the mere fact of the next reelection campaign does not operate to automatically disallow deductibility of expenses of a legislator. E.g., Chappie v. Commissioner, supra.
II. National Black Political Conference
The parties have stipulated that Diggs attended 10 meetings of the National Black Political Conference in 1972. Only the first of these meetings (in Muskegon Heights on Feb. 20, 1972) was held in Michigan, the State from which Diggs was elected and in which Diggs ran for reelection in 1972. The majority have found that this organization’s assembly was held in Gary, Ind., on March 10 through 13,1972, and that, of the other eight meetings, five were held in Illinois and one each in Ohio, New York, and Nevada. The majority have found that “One of the reasons [Diggs] attended meetings 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.) The agenda thus developed was presented to the Platform Committees of both the Democratic and the Republican National Conventions in 1972. The majority have not made any finding as to any other reasons Diggs might have had for attending the meetings of the National Black Political Conference in 1972.
Investigation of problems faced by people, examination of ways of meeting such problems, identification of those aspects of solutions that may usefully be pursued through the body politic, and education of colleagues and potential colleagues as to such problems and solutions (especially those that would involve the Congress taking or avoiding certain actions) — these fairly describe the constitutional role of a Member of Congress. See Chappie v. Commissioner, supra. On the record before us in the instant case, the foregoing fairly describes the activities of Diggs with respect to the National Black Political Conference. Nothing in the majority’s findings leads to the conclusion that these activities were so tied up with Diggs’ efforts at reelection that the expenses of these activities should fall under the McDonald doctrine of nondeductibility. See Chappie v. Commissioner, supra. I would hold that petitioners are entitled to deduct the $1,303 that Diggs spent in 1972 for attendance at meetings of the National Black Political Conference.
III. Democratic National Convention
Diggs’ attendance at the Democratic National Convention from July 7 through 15, 1972, must be viewed in a different light. This convention selected the Democratic Party’s nominees for President and Vice President in the election to be held less than 4 months later.5 The convention also adopted a party platform, a program intimately connected with the then-upcoming election. Such a national platform, although tied most closely to a party’s nominees for President and Vice President, also is part of the picture in the election campaigns of that party’s nominees for the other national offices — Members of the U.S. Congress.
The majority have found that Diggs was a voting delegate to the 1972 Democratic National Convention and that he “played a significant role” there. The news media of the Nation focused on the convention. The context of the convention was the then-upcoming election of our National Government. It is difficult to imagine how a candidate for election to the U.S. Congress in 1972 could participate officially and “play a significant role” in the 1972 National Convention of his or her party without such activities being inextricably intertwined with his or her election campaign. Petitioners have not shown any subordination of Diggs’ role as a candidate, or any predominance of his trade or business as a Member of Congress, or any way in which we could allocate the $1,083 he spent to attend the 1972 Democratic National Convention between his candidacy and his trade or business. I agree with the majority that petitioners are not entitled to deduct this amount.
IV. "Political” Activities
The majority dispose of petitioners’ contentions by describing Diggs’ activities, the deductibility of the expenses of which are here in dispute, as “political.” Respectfully, I submit that the unadorned label “political” is neither a useful tool in analysis nor even a convenient conclusory label.
The adjective “political” has a number of accepted meanings, among them the following: (1) Of or pertaining to Government, (2) having a settled system of administration, (3) of or pertaining to the system by which the individuals of a State seek to control the State’s public policy, and (4) of or pertaining to those who make a business or profession of politics (Webster’s New International Dictionary 1909 (2d ed. 1959)). The term also has taken on many nuances that vary from context to context.
The Congress has used the term “political” in section 162(e)(2)(A), as follows:
(2) Limitation. — The provisions of paragraph (1) [which allow deduction of certain lobbying expenses] shall not be construed as allowing the deduction of any amount paid or incurred (whether by way of contribution, gift, or otherwise)—
(A) for participation in, or intervention in, any political campaign on behalf of any candidate for public office * * * [Emphasis supplied.]
The emphasized language was previously enacted in 1954 as part of section 501(c)(3). The language also appears in section 170(c)(2)(D) and cognate deduction provisions (secs. 2055(a), 2106(a)(2)(A), 2522(a)(2), and 2522(b)).
In each of these provisions, the Congress’ use of the term “political” helps to focus on a limited type of activity. In none of these provisions is the essentially unadorned adjective the basis of a sweeping malediction. The use of the term in the majority’s opinion, supra, stands in sharp contrast to the Congress’ use in the Internal Revenue Code.
The majority warn that we must not “blur the line of distinction between petitioner’s respective positions as a political figure and as a Member of Congress.” Majority opinion, supra at 892. Every Member of Congress is a “political figure” in almost any sense of the term. To paraphrase the majority, Members of Congress are quintessentially political figures. Diggs’ activities here in dispute were political in almost any sense of the term Every trade or business activity of a Member of Congress is political in almost any sense of the term, yet both the majority herein and respondent concede that a Member of Congress may have deductible expenses of his or her trade or business as a Member. Majority opinion, supra at 892. See Rev. Rul. 76-276, 1976-2 C.B. 14; Rev. Rul. 73-356, 1973-2 C.B. 31; Rev. Rul. 65-224, 1965-2 C.B. 42.
The majority’s use of “political” as a test for disallowance of deduction is unfounded in the statute; it neither provides a clue to the decision of future cases nor does it explain the holdings of the instant case; it is wrong.
V. Section 162(e)
The majority engage in an extensive discussion of section 162(e), a provision enacted by section 3(a) of the Revenue Act of 1962, Pub. L. 87-834, 76 Stat. 973, as a reaction to the Supreme Court’s decision in Cammarano v. United States, 358 U.S. 498 (1959), and to the regulations issued by the Treasury Department later in 1959. H. Rept. 87-1447, pp. 16-17, 1962-3 C.B. 402, 420-421; S. Rept. 87-1881, pp. 21-23, 1962-3 C.B. 703, 727-729.
The majority hold that Diggs’ expenses are not deductible under section 162(e) because “such expenses were not paid or incurred in [Diggs’] trade or business.” Firstly, petitioners do not claim deductions under section 162(e). Secondly, expenses not paid or incurred in a taxpayer’s trade or business are not deductible under section 162(a), even without regard to section 162(e). In short, section 162(e) seems to be irrelevant to the majority’s conclusions.
VI. Equal Treatment
The majority seek to distinguish Rev. Rul. 65-224, supra,6 because the legislator described in this ruling was successful in securing a legislative inquiry and enactment of legislation dealing with the matters that he had investigated. In contrast, the majority state (majority opinion, supra at 900), “Petitioners have nowhere shown that any investigations by the Congressman in connection with the activities for which he is claiming deductions lead to any specific legislation or proposals therefor.”7
Lack of success — or of immediate success — in one’s efforts is not usually thought to automatically forbid a deduction for the expenses of these efforts. Indeed, we specifically rejected respondent’s efforts to make prompt success a touchstone, where the expenses were otherwise within section 162(a) (Cremona v. Commissioner, 58 T.C. 219 (1972) (relating to employment agency fees where the taxpayer was unsuccessful in securing a new position)). Where we yielded to respondent’s urging in holding that the costs of an unsuccessful defense in a criminal case were nondeductible even though the costs of a successful defense would have been deductible, we were brought up sharply by the Supreme Court. Commissioner v. Tellier, 383 U.S. 687(1966).8
The ground on which the majority distinguish Rev. Rul. 65-224 from the instant case is an untenable one. In addition to being bad tax law, it is bad public policy, for it discriminates against the conscientious legislator who is in the minority at a given time and place, as compared to that legislator’s colleague who carries the day in terms of enactment of a law. Too, it discriminates against the legislator whose success consists of blocking enactment of what may be a bad bill, by comparison with that legislator’s colleague whose success consists of enacting a law.
Respectfully, I urge that we not ratify respondent’s apparent attempt to use the tax laws to deter independent investigations by legislators who do not foresee their efforts producing prompt and favorable results.
VII. Concurring Opinion
Judge Tannenwald, in his concurring opinion, urges us to “stay our hand” because it might be unconstitutional for us to allow any deduction to petitioners, notwithstanding his concession that petitioners may well have satisfied the requirements of the Code.
Firstly, the majority’s determination to hold for respondent is no more a staying of this Court’s hand than would be a holding for petitioners.
Secondly, unequal treatment under the law hardly seems to fit the prescription for constitutional prudence advocated in the concurring opinion. We have neither gathered nor been presented with information from which we could rationally decide whether the commonweal is served by denying Members of Congress deductions available to others. It is legislative line-drawing that will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts. United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4, 6 (1970), revg. per curiam 308 F. Supp. 761 (D. Md. 1970). The presumption of constitutionality which is particularly strong in the case of a revenue provision is a presumption of the constitutionality of an Act of the Congress. Nicol v. Ames, 173 U.S. 509, 514-515 (1899). The Congress has not drawn the line proposed in the concurring opinion.
Thirdly, it will be time enough to consider the impact of possible constitutional infirmities in a holding one way or the other when such constitutional problems are presented to us. E.g., Golden Rule Church Association v. Commissioner, 41 T.C. 719, 731 (1964). In the instant case, the parties have not raised the constitutional question.
SEC. 7701. DEFINITIONS.
(a) When used in this title, where not otherwise distinctly expressed or manifestly incompatible with the intent thereof—
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(26) Trade or business. — The term “trade or business” includes the performance of the functions of a public office.
SEC. 162. TRADE OR BUSINESS EXPENSES.
(a) In General. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * *
As the Court pointed out (323 U.S. 57, 64 n. 6 (1944)), McDonald was holding his office temporarily by appointment; he was a candidate for election for the first time and arguably not a candidate for reelection.
Although there was no majority opinion in McDonald v. Commissioner, supra, none of the opinions disputed the nondeductibility of the expenses under the predecessor of sec. 162(a). The four dissenters in McDonald maintained the expenses were deductible under the predecessor of sec. 212(1). This latter contention is not before us in the instant case.
The subsequent replacement of the nominee for Vice President does not alter the focus of this Democratic National Convention.
Revenue rulings merely indicate the opinion or position of the Internal Revenue Service. E.g., Browne v. Commissioner, 73 T.C. 723, 731 (1980) (Hall, J., concurring).
The majority also refer to a House report on the enactment of sec. 162(e) as imposing a requirement that “the expenses must be incurred in connection with specific legislation or proposals for legislation.” That may be true of lobbying expense deductions sought as a result of the Congress’ partial overruling of Cammarano v. United States, 358 U.S. 498 (1959), but I find it difficult to understand what sec. 162(e) has to do with expenses of a Member of Congress in investigating concerns that might or might not lead to legislation.
See also Nichols v. Commissioner, 60 T.C. 236 (1973), affd. 511 F.2d 618 (5th Cir. 1975), where we concluded that the filing fee of the successful candidate for public office was to be treated the same as the fee of the unsuccessful candidate in McDonald v. Commissioner, supra.