David J. And Anne M. Weissman v. Commissioner of Internal Revenue

KELLEHER, District Judge

(dissenting):

The factual findings of the Tax Court fully support the conclusion that Professor Weissman failed to establish his entitlement to a deduction of his home office expenses. I agree with the Tax Court and the Commissioner that appellant failed to prove the requirements of Section 280A of the Code, 26 U.S.C. (1982), that his home office was the focal point of his business activities. Accordingly, I dissent.

There is no denying that the facilities provided to Weissman by City College were of a humble nature, inadequately serving some of his needs as a researcher-writer. Yet Weissman’s responsibilities at CCNY included more than just research and writing; he taught classes, met with students, graded exams, prepared lectures, and kept abreast with current events in philosophy through publications available in the library. Weissman was employed by CCNY primarily to teach. The fact that he devoted the majority of his working hours to research and writing is incidental to the employment for which he was compensated and against which he seeks a tax deduction. Even though Weissman spent the majority of his time doing research and writing at home, the “focal point” of his job clearly was CCNY.

I.

The Tax Court found on supportive evidence that the “focal point” of Weissman’s business activities was CCNY. Weissman v. Commissioner, 47 T.C.M. (CCH) 520, 522 (1983). The Tax Court’s determination is factual, and can be disturbed on appeal only if it is clearly erroneous. Roemer v. Board of Public Works, 426 U.S. 736, 758, 96 S.Ct. 2337, 2350, 49 L.Ed.2d 179 (1976); Commissioner v. Duberstein, 363 U.S. 278, 289, 80 S.Ct. 1190, 1198, 4 L.Ed.2d 1218 (1960).

*518A.

The Tax Court has uniformly held that the focal point of college and secondary school professors is the educational institution, and attached facilities, rather than the home office. See Weightman v. Commissioner, 45 T.C.M. (CCH) 167 (1982); Moskovit v. Commissioner, 44 T.C.M. (CCH) 859 (1982), aff'd by unpublished opinion, (10th Cir. October 19, 1983); Storzer v. Commissioner, 44 T.C.M. (CCH) 100 (1982); Strasser v. Commissioner, 42 T.C.M. (CCH) 1125 (1981); Weightman v. Commissioner, 42 T.C.M. (CCH) 104 (1981). The majority opinion implicitly asserts that the Tax Court applied these decisions in a rigid, formalistic manner to Weissman’s situation. A closer inspection of a sampler of these cases, however, belies such a-contention.

For example, in Weightman v. Commissioner, 42 T.C.M. 104 (1981), the taxpayer taught at Lehman College in the Bronx, New York City. He shared his office with two other educators in a building not open on the weekends. He had limited telephone access, no typewriter, and was constantly subject to the threat of burglary and assault. It was not safe to leave any belongings in his office, nor for him to stay at the college after dark. The taxpayer used a portion of his apartment exclusively and regularly for business purposes. Additionally, the taxpayer alleged that his home research activities were more important than his teaching. The Tax Court ruled, however, that he was employed as a teacher, not as a researcher. Consequently, the Tax Court decided that the taxpayer’s principal place of business was the school, and not his home office. Id. at 108-09.

In Storzer v. Commissioner, supra, petitioner was supplied with an on-campus staff room; a small office space crammed with six desks and seven other academics, no typewriters, and no privacy. Further, the taxpayer was not provided with a library carrel or similar cubbyhole to perform research. Petitioner used a home office as his exclusive research and writing station. The taxpayer’s contention that he spent more time in his home office fell on an unsympathetic court. Rather, the Tax Court held that Section 280A prohibited the deduction of Storzer’s home office expenses. Id. at 102.

Weissman’s situation was no more egregious than either case discussed above. The Tax Court’s application of its interpretation of these cases to Weissman was sound and reasonable. As such, I have not found the Tax Court’s holding to be factually deficient. The ruling that CCNY was Weissman’s principal place of business, in my view, was not clearly erroneous.

B.

I cannot agree with the majority’s reading of Drucker v. Commissioner, 715 F.2d 67 (2d Cir.1983). There, the Court determined that the principal place of business of Metropolitan Opera musicians was their home practice area. These musicians were offered “no space for the essential task of private practice____” Id. at 70 (emphasis in original). A musician must practice; he must have a suitable situs to harmonize the sounds his instrument emits. As a famous pianist once noted:

If I don’t practice for one day, I know it; if I don’t practice for two days, the critics know it; if I don’t practice for three days, the audience knows it.

E. Mach, Great Pianists Speak for Themselves (1980), quoted in Drucker v. Commissioner, 715 F.2d 67, 68 (2d Cir.1983).

In Drucker the Metropolitan musicians had no space to practice for their performance. Clearly, practice was essential to acceptable and compensable performance. Without their home practice facilities Drucker musicians would not have been able to refine and perfect the skills required to acceptable performances of the Metropolitan Opera. The Drucker court determined that the focal points of the musicians’ employment related activities were their home practice studios. Id. at 69. The Court specifically limited this holding, however, and found this “to be the rare situation in which an employee’s principal place *519of business is not that of his employer.” Id.

The work related activities of a college professor does not present any such “rare situation.” Weissman was provided with on-campus accommodations to facilitate his teaching of philosophy. His office and the college library were sufficient stations for the acceptable and compensable performance of his job. He should not be allowed to deduct the expenses he incurred while using his home office.

C.

I am disturbed by the breadth of the majority opinion. The Court established no restraints or limitations to its conclusions. Rather, it opens the door to an endless array of Section 280A cases; to all sorts of “creative” deductions of home office expenses. Inevitably, this Court will face a barrage of deduction claims, not unlike those of Professor Weissman. It is not the province of this Court to engage in a fact finding process and thereupon reverse the Tax Court’s findings merely upon a disputable difference as to the correctness of such findings. To do so is a violation of the permissible standard of review by this Court. Accordingly, I dissent.