(dissenting):
I respectfully dissent.
I cannot agree with the majority’s conclusion that McCabe’s additional commuting costs were entirely a result of his personal choice of residence. In Fausner v. Commissioner, 413 U.S. 838, 93 S.Ct. 2820, 37 L.Ed.2d 996 (1973) (per curiam), the Supreme Court disallowed a deduction for commuting costs where the taxpayer, a commercial airlines pilot, claimed that his “automobile expenses were incurred to transport his flight bag and overnight bag and thus constituted ordinary and necessary business expenses.” Id. at 838, 93 S.Ct. 2820, 37 L.Ed.2d 996. Because the taxpayer would have driven to work via the same route in any event, the Court found that no “allocation of costs- between ‘personal’ and ‘business’ expenses” was feasible. Id. at 839, 93 S.Ct. at 2821. The Internal Revenue Service has construed Fausner
to allow an ordinary and necessary business expense deduction for only the portion of the cost of transporting the work implements by the mode of transportation used which is in excess of cost of commuting by the same mode of transportation without the work implements. The fact that a taxpayer might have or would have used a less expensive mode of transportation if it had not been necessary to carrying the work implements is immaterial.
Rev.Rul. 75-380, 1975-2 C.B. 59, 60.
This case is factually distinguishable from Fausner. Had McCabe driven to work without his firearm, he could have travelled through New Jersey. As a result of his alleged inability to secure a New Jersey gun permit, however, McCabe was forced to take a circuitous route, adding fifty cents in tolls and fifteen miles to his commute. Compare Stipulated Facts, 1Í1Í13-14 with Stipulated Facts, lili 30-31. Certainly, these additional costs were caused by his employer’s requirement that he carry his firearm at all times while within New York City and can be allocated as “business” expenses under Fausner.
The majority’s reasoning, that “the location of one’s home is personal and did not serve to further the business of the taxpayer’s employer in this case,” Maj. op. at 107, drawn to its logical extreme, would disallow or render meaningless almost all Fausnertype deductions. A taxpayer can almost always reduce or eliminate his excess commuting costs by living closer to his work location. The real issue is whether, given the location of McCabe’s residence and his selection of a reasonable mode of travel, he incurred additional “ordinary and necessary” commuting costs “in the pursuit of the business of the taxpayer’s employer.” Commissioner v. Flowers, 326 U.S. 465, 473, 66 S.Ct. 250, 253, 90 L.Ed. 203 (1946). To the extent that McCabe’s change in route of travel was necessary to satisfy his employer’s requirement that he carry his firearm while in New York City, I believe that he is entitled to a deduction under section 162(a) of the Internal Revenue Code.
*108The record does not indicate, however, whether McCabe ever applied for a New Jersey gun permit or demonstrated the futility of such an application. McCabe’s inability to obtain a permit is critical to his argument that his additional commuting costs are deductible as “ordinary and necessary” business expenses pursuant to section 162(a). The sole factual stipulation concerning his attempt to obtain a permit states:
Generally, New Jersey authorities issue gun permits only to those individuals with job requirements necessitating that they be armed in that state or to individuals who can establish other urgent need. Applications for gun permits are evaluated on their own merits.
Stipulated Facts, H9. I would therefore remand this case to the Tax Court for a determination of what efforts, if any, McCabe made to acquire a permit. If the Tax Court determined that McCabe never applied for a permit or that he failed to demonstrate the futility of an application, the Court should disallow his deduction for failure to meet the threshold showing that the added commuting expenses incurred were necessary. If the Court were satisfied, however, that McCabe could not obtain a permit, it should allow his deduction under section 162(a).