(dissenting).
I do not think the problem before us is as cut and dried as it appears to the majority.
In Commissioner of Internal Revenue v. Doak, 4 Cir., 1956, 234 F.2d 704; Commissioner of Internal Revenue v. Moran, 8 Cir., 1956, 236 F.2d 595, and in the case now before us, the Commis*506sioner conceded the expenses were necessary. The sole remaining question then is “whether these expenses were predominantly personal or business in nature.” Commissioner of Internal Revenue v. Doak, supra, 234 F.2d at page 706. The fact that similar expenses are incurred by other taxpayers does not automatically dispose of the issue. Even the Moran case admits this, saying “It is true that certain expenses normally personal may become deductible by reason of intimate relation to an occupation carried on away from home or partially away from the principal place of doing business, but this is so because of the predominant business characteristics of the expense.” Commissioner of Internal Revenue v. Moran, supra, 236 F.2d at page 597. (Emphasis supplied.) It would appear that in this area each case should be decided on its facts rather than be forced, meritorious or not, under a blanket prohibition as a matter of expediency.
Again in the Doak and Moran cases, and in the majority opinion here, it is conceded that the very same expenses would be deductible if the taxpayers were employees of another or, if they had incorporated their business, under the “convenience of employer” rule. This is nothing more than penalizing the self-employed, unincorporated business man. The above concessions imply that the expenses are predominantly business in nature. They therefore should be deductible irrespective of the form of business or status of the taxpayer. As the late Chief Judge Parker stated in his dissenting opinion in Doak, “There is no reason why the value of such meals should be considered as income and as the personal expense of the taxpayer merely because he is self-employed in his own business rather than employed in the business of another.”
I would affirm the decision of the Tax Court.