McClain v. Commissioner

1925 BTA LEXIS 2296 | B.T.A. | 1925

Lead Opinion

OPINION.

Sternhagen:

The petition contains an argument that since the contract of employment provides for the payment by the employer of the moving expenses, they are therefore business expenses. It may be that the payment made by the employer is a business expense so far as he is concerned, but the mere fact that the taxpayer receives this amount under the contract does not determine the character of the expenditure made by the taxpayer. What we have to consider here is whether or not the amount, when expended by the taxpayer, is in the nature of an ordinary and necessary expense paid or incurred by him “ in carrying on any trade or business,” or is traveling expenses “ while away from home in the pursuit of a trade or business” (the quotations being the language of the Act of 1921). The taxpayer changed the place of residence of himself and his family to another city, for the purpose of entering upon new employment in that city. As compensation under the contract of employment, he received, in addition to salary, the amount of the moving expenses. The expenditure when made by him, we think, was purely a personal and family expense, and we can see no basis in reason for finding that they were incurred in carrying on a trade or business, or in pursuit of a trade or business of either the taxpayer or his employer.

AettNdell not participating.