concurring in part and dissenting in part: I agree that the expenses allegedly incurred for child care during the son’s European vacation are not a proper element of the child care credit. I further agree that there must be an allocation with respect to the cost of the Washington, D.C., vacation trip. I disagree, however, with the failure of the majority to make an allocation of the summer camp expense, and I strongly disagree with the reasoning of the majority.
Entitlement to the credit is dependent upon meeting two separate tests. The expenses must be incurred in order to permit the taxpayer to become gainfully employed, and they must be incurred for the "care” of the child (or in some cases of the dependent). Under the facts of this case, petitioner has demonstrated that she must incur child care expenses in order to be gainfully employed. The question is whether or not the expenses here in issue are for care within the meaning of the statute.
The proper constituents of permissible child care expense must be determined not only on the basis of the words of the statute but on the pertinent legislative history. In this case, I believe that the most definitive explanation of congressional intent is to be found in the report of the Senate Finance Committee on the 1971 amendments to section 214.1 That report as I read it makes it clear that the Congress was visualizing care outside the home in a very limited sense. The following language is significant:
In addition, however, the committee recognized that in the case of child care, the child is often taken to a day care center or to another person’s home for care during the day. As a result, the amendment makes provision for child care expenses outside of the home up to [specified dollar amounts] * * * [S. Rept. 92-437, at 61,1972-1 C.B. 593.]
Respondent’s regulations have interpreted the congressional intent very liberally, at least in the context of an educational environment, by the allowance of a portion of private boarding school expenses. But the majority in this case has used the analogy of example (2) of section 1.44A-1 (c)(6), Income Tax Regs., to go far beyond the statutory language and the stated congressional intent by failing to recognize the distinction between purely recreational activities during vacation periods and circumstances attendant on private schooling.
In my judgment, we are not required by the regulations to permit a deduction for the costs of an away-from-home summer camp, or, for that matter, any other purely recreational activity (such as, in this case, the vacation trips to Washington, D.C., and to Europe), beyond that part of the actual cost incurred which represents the reasonable cost of day care while the custodial parent is actually working. Such activities, beyond the custodial type in nursery school, simply do not constitute a part of the care of a qualifying individual within section 1.44A-l(c)(3), Income Tax Regs. The fact, if it be a fact, that day care at home might have cost more than a vacation trip is simply irrelevant. This may be a hard line to draw, but draw it we should. The leap from a day care center to an 8-weeks summer camp in Canada is more than I can make. It is one thing to allow a credit for the costs of a day camp on the days on which petitioner was at work, but the majority allows a credit for the food and lodging for 24 hours a day, 7 days a week, for 2 months. Similarly, it is one thing to allow a credit for the costs of food and lodging when they are incurred to provide education, but the majority allows such costs when they are simply incurred for recreation.
Petitioner in this case is entitled to some credit for employment-related expenses, subject, of course, to the special rules of section 44A(f). In the absence of other evidence, I would determine the amount of these expenses by an allocation under the authority of Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930). Such an allocation would be designed to segregate from the actual vacation and camp costs incurred that part which represents the cost of the child’s protection during a period equivalent to the parent’s workday and the needs appropriate for that period. This would constitute the employment-related expense. The allocation should exclude the costs of lodging, additional meals, transportation, and educational or recreational activities. In this case, I would apply such an allocation to the summer camp and Washington trip costs but not to the claimed European expenses for the reasons stated by the Court.
Fay, Simpson, and Irwin, JJ., agree with this concurring and dissenting opinion.S. Rept. 92-437, at 13-14, and 59-62 (1971), 1972-1 C.B. 565-566,591-593.