(dissenting) :
I would affirm the Tax Court on the basis of its determination, 52 T.C. 378 (1969), that the primary purpose of Mr. Stratton’s “home leave” was to provide him with a vacation. The Tax Court properly relied upon Rudolph v. United States, 291 F.2d 841 (5th Cir. 1961), cert. dismissed, 370 U.S. 269, 82 S.Ct. 1277, 8 L.Ed.2d 484 (1962), in dismissing petitioners’ claim. See also Patterson v. Thomas, 289 F.2d 108 (5th Cir. 1961).
*1035The compulsory nature of “home leave” is only one factor in determining whether Mr. Stratton’s traveling expenses while on such leave were “in the pursuit of a trade or business.” All the circumstances of each case are to be considered.
For example Treas.Reg., § 1.162-2(b) (2) (1958), provides:
“The amount of time during the period of the trip which is spent on personal activity compared to the amount of time spent on activities directly relating to the taxpayer’s trade or business is an important factor in determining whether the trip is primarily personal.”
As the Tax Court noted, it is conceded that during “home leave” Mr. Stratton “was free to travel where he chose and to do as he pleased; he was not subject to control by his employer.” It is uncontroverted that while on “home leave” Mr. Stratton performed no official acts in his capacity as a State Department foreign service officer. Mr.-Stratton could not remember specifically what he did during his “home leave.” He testified, however, that to the best of his recollection, “I spent part of the time in the East and part time in the West, as I recall, and part of the time that I spent in the East I spent with my wife’s family, and part of the time I spent traveling with my wife.” In short, all “of the time during the period of the trip [was] spent on personal activity” and none “on activities directly relating to the taxpayer’s trade or business.”
“[T]he nature of the trip must be determined from the individual taxpayer’s point of view, rather than from the viewpoint of his employer.” Patterson v. Thomas, supra, 289 F.2d at 112. See also United States v. Disney, 413 F.2d 783, 787 (9th Cir. 1969). On this record, it cannot be said that the Tax Court was clearly wrong in finding that from Mr. Stratton’s point of view the primary purpose of “home leave” was personal pleasure.