*2
BROWN,
Bеfore HUTCHESON
Judges,
SIMPSON,
Circuit
District
Judge.
BROWN,
Judge:
R.
JOHN
Circuit
presents
old,
question
This case
old
deductibility
transportation
of the tax
ognized,
for,
all of
going
More
allowed deduction
from work.1
to and
costs
job
probably what is
costs between
sites
question
precisely, the
during
also
matter
those to and
And
work?
does
actually
practical purposes,
a Galveston. For all
“place of work”
*3
1959,
Commissioner,
places
case is like
great
physical
Heuer v.
of
number
mem., Cir., 1960,
wage-earner-taxpayer
32
aff’d
283
T.C.
5
from which
which,
865, upon
more,
go?
F.2d
intermittently
without
we
All of these
must
might
by
well
of
affirm. But
in view of the
prоblems
presented
the decision
confirming
care with which the
of
trial Court record
the action
the Tax Court
fully
argu-
developed
was
By
of
earnest
the cost
the Commissioner.
pressed,
including
ment
depreciation
we think the
transportation,
case warrants
a discussion of
operating expenses
privately
the reasons which lead us
of a
principle.
automobile,
affirmance in
a
owned
were
disallowed
they repre-
ship pilot
Houston
insofar as
Captain Steinhort,
Taxpayer,2
ais
sented
to the
home
appointed
Branch Pilot3
and commission
place of
first
work and from the last
ed
Texas,
under the
of
laws
8248-
Arts.
8256,4
of work to home at the close of the
pilotage
for the exclusive
of all
“ * * -
day.
ships
The Commission^' and Court rec-
between the
of
Gulf
1.
26 U.S.C.A.
26 U.S.C.A.
Revenue Code of 1954 are:
lowed as
or incurred
DUCTION
allowed
sonable allowance for
FAMILY
EXPENSES.
26
tion,
ordinary
vided
duction of income.
the entire amount
shall be allowed as a
cluding—
curred
reasonable allowance for the exhaus-
rying
U.S.C.A.
Ҥ 262.
“(2)
“(1)
Ҥ
“(a)
“In the case of an
“(1)
Ҥ
“Except
“(2)
“(a)
Ҥ
[*]
“
income;
U.S.C.A.
business,
[*]
relevant sections of the
lodging)
pursuit
162. TRADE
necessary expenses paid
167. DEPRECIATION.
wear and tear
In General. —There shall be al-
for the
during
traveling
General Hule. —There shall be
”
as a
this
EXPENSES.
* *
[*]
§
PERSONAL,
any
§
property
property
as otherwise
OF
EXPENSES
* *
212:
§
deduction all the
during
262:
167:
or
chapter,
while
necessary
162:
depreciation
production
trade or
INCOME.
a trade or
[*]
expenses
taxable
expended
away
*
the taxable
hold
used
OR BUSINESS
(including
deduction all the
**
individual,
obsolescence)—
LIVING,
deduction
expressly pro-
expenses
business,
$
FOR PRO-
or collection
year
”
deduction
for meals
the trade
(including
business;
ordinary
Internal
home
in
year—
or
AND
there
[*]
shall
paid
pro-
car-
rea-
in-
in-
in
2.
England
Henry
House to
2d
course,
by a brother of the
applied
under Arts.
tion between the two cases is that
the south side of the
north side of the
AMC
Vela,
assessors
sea,
to an
pears
England
wife as
pilot.
association
such
Goodwin,
are before us as
ship Corp.
tain
8256. Pilots of
appointed
1956 AMC
tain
amination as to
appoints
Captain Steinhort
The term is another
This record also covers the case of
Vernon’s Tex.Civ.Stat.Ann.
ily expenses.”
308, 311,
McNary
sea law and sea
allowed for
73 S.Ct.
J.
certificate.” Houston Pilots v.
952;
admiralty judge.
Each is
VIII.
to certificate
the Brethren
co-petitioner.
E.
a branch
those for
Tex.
745;
of mariners first chartered
the word
McNary,
signify
United
lived in Channelview on the
8248-8257.
the District Commissioners
Scott,
starboardhand
Civ.App.1944,
error dism’d.
joined,
Walker v.
who
Navigation
personal,
their
Ship
litigants,
is likewise
seaports.
lived in Houston on
given by
the certificate held
Geophysical
have
Trinity House,
a fellow Houston
branch
lawyers.
Ship
L.Ed.
Channel whereas
competence.
is the holder
Calmar Steam
Trinity
living,
The Governor
course,
Harris, Cir.,
passed
Districts are
only
not nautical
Channel.
arts. 8248-
Arts. 8264-
lore of the
is used
178
assistants
the term
Here,
or fam-
“It
distinc-
Trinity
Co.
an ex
House
S.W.
Caр-
Cap-
ap
an
by
In
is,
as well
however,
Mexico and
Port
[the
Houston]
S.W.
a service
321 —
landing
stops
places
supplied by
intermediate
the individual whose relation-
navigable
upon
ship
comparable
for such
streams
toward
boats
the vessel is
”
* * *
wholly
partly
independent
contractor,
an
within
Mobile Bar
County
Ship
Cir.,
Harris
Pilots
Commissioner,
Houston
Channel
Ass’n v.
Navigation
such,
District. Art. 8249.5 Under
97.3, 1964 at 70 alongside “place F.Supp. S.D.Calif., 1959, Riddell, work” a vessel six 179 v. buoy Teague Riddell, miles out in the at 576; Gulf the sea S.D. v. cf. but par. as it is to fix it at the first or last Calif., 1959, U.S.T.C. 59-2 pier-side facilities, 11, supra. see worker note Likewise, where construction logic matter, proposition “temporary” employment For that as a argue at a obtains alone, persuasively temporary could place in the sense one of work— as; having reasonably places A, B, move a worker and C that a worker would day’s work, regular family are costs destinations to that area —travel going hand, from home to B then to C the other those deductible.24 On stopping jobs or “indefinite” even it is dоne after first “intermediate” Peurifoy respectively. at A and B the law are not. Yet the reverse sense be, 1958, 59, Commissioner, is, permits car itself to v. 79 neither nor 30; recognizes, 104, logic. away v. 3 L.Ed.2d Claunch Com S.Ct. ried bi^ missioner, Cir., 1959, first, more F.2d 309. 5 264 there are two that where costs, business, places all established Following Heuer,25 Court or them is an of dinary between approach general here to look pursues this necessary expense. business upon principal Port area 947, Heuer, Jr., 1959, T.C. 32 William L. regular place The cost of work. 865; 1960, mem., Cir., 283 F.2d affirmed 5 getting the first home and to and from 852, 1961, af Sapp, T.C. 36 Clarеnce J. job that area and last within 1962, Cir., 143 mem., F.2d 309 firmed 5 trips “commutation,” personal all other 657; Kistler, 1963, cf. 40 T.C. James A. fully being deductible between facilities Freedman, 1961, T.C. 35 Julian D. ordinary necessary business ex 359; Cir., affirmed, F.2d 1962, 301 5 situations, pense. As with 1955, Thus, Cir., Commissioner, 1 v. Chandler logical, difficulties which leads to some 467; Mertens 25.96. 226 F.2d § give way simply practi to more have occurring inter-facility movements cal considerations. departure first, until after arrival at the facility logic, viewpoint from the last within for home From the really area, dock deductible.26 at these Houston Port of work is Cir., Commissioner, Gray, Cir., ion). Compare 9 Burns v. Crowthеr Wright 292; v. Hart F.2d 698. 221; Contrary insistence, sell, Cir., Mat F.2d Cir., Commissioner, of no- cases are Circuit “travel” Ninth thews “temporary”, help 98, reversing T.C. him here. The Mem. real distinction, although Verner, 483; compare Leo M. “indeterminate” great deductibility Matthews, determining 749; States v. use T.C. United 162(a) (2) expenses Cir., 1964, where § 64-2 U.S.T.C. under locality, 1964], May 18, 18,802, par. in another district work is done [No. denying F.Supp. principle D.Idaho, reversing not cut into the does “commuting expenses” 60-189, 932; Cum. also Rev.Rul. a deduction see metropolitan 1960-20, As Mer 12]. within the same at travel [I.R.B. Bull. 25.93, taxpayer’s points out, home. at established Mertens area as the tens Commissionеr, 5 our Flowers v. *9 1960, Commissioner, Cir., grounds, 163, v. other 25. Heuer reversed on affirming 1959, 250, 865, mem. 32: 90 L.Ed. S.Ct. U.S. Eighth aligns and Ninth T.C. 947. us with the the “home” is where view that Circuit customarily beyond dispute that the- is, re is man 26. Since it a where home work, absolutely place in car- essential sides, of automobile is the so-called being pilot, rying approved passed yet concept business of a or on the facility day’s Peurifoy trip first Supreme from the the Court. 5-7) Baytown (e. g., Commissioner, F. Terminal 358 U.S. opin facility be needed (dissenting will next where 3 L.Ed.2d S.Ct. in residential de section new southwest Similarly, from trips Galveston skirting super recognizes, velopments paralleling here are, Tax Court as the high regard expressways travel as as se must to the fully without deductible sequence way. first, That the to 15 miles each trips whether the (cid:127)quence of the go day. irregular, requiring one is is both) trip This (or last day day dock, far to one the next one approach of the that is so whether is, likewise, equating of no determinative removed Revenue Service Tax Court already significance. Doctors, as we have place of work principal with “home” Many 24, observed, (see to do this.28 other have note Circuit view the 8th-9th-5th do same. classes workers must home. On either .supra) “home” is longshoremen include, example, ones, comparable These test, trips, and these many loading discharging meeting home, away of the re vessels at Included, 162(a) (2) various dock facilities. and Commis quirements of § too, Flowers, are skilled construction trade work of Internal Revenue sioner ers, carpenters, plumbers, roofers, paint 90 L.Ed. S.Ct. ers who work one area and one ., ,. shift clear across town the next as the this practical „Q considerations With job J up.29 , kind opens old ends and a one . . new ... overriding sheer , the dictates „„ Nor does combination of occasional logical consistency, it unreason-. long distances and regularity m desti pilots judge of the the activities able to really change picture nations To including factors, practical like under charge Taxpayer to the the first home- , ,. , , ,, , work- comparison with .... . . job trip job-home trip and the last as non- “ , ,. commuta- „ cost must bear the ers who j averages commutation,” deductible out „ „, , „ . tion" travel alone. period year over a of a or so to fix for a pilot, doctor, metropolitan as it area would for the the con Distance within the any worker, visiting nurse, struction Taxpayer’s home is not alone front peripatetic preacher, approximate distance course the distinction. Of real running get distance great, up which must may 25 or 30 be traveled to to and from maps the work. in evi At the time introduced same miles.27 But the equality substantial with other undulat some of us otherwise dence reflect what achieved, ing wage-earning-taxpayers know, major such areas residential region Memorial Drive as those i principle, approve n We thus which contain thousands homes Heuer, apрroach did we professional run-of-the-mill business not contain As the record does Court. each men to travel 15 to 18 miles have demonstrating the Com evidence morning night to and from the heart percentage missioner’s allowance30 in the the business section. Others See, g., Baytown 34-36) (e. g., Terminal, F. 5-7. e. F. Manchester expense is business even this Major wife, hospitals Taxpayer’s from the are scattered the means which the mid-downtown, city, acting driver, clear center of the as his returns from the Compare Center, “personal” out to the Medical nondeductible commutation (eardio- any Marot, 1961, leg. Benke 36 T.C. 23S would include Whether this operator), mileage graph to her “exeess” deviation depend on factors home would differently Perhaps practice would be reasonableness com- treated having with, say, expense pared who route salesman the so-called outside goes place non-family within a metro- chauffeur driver. Similar purposes politan comparative who for some area and considerations reason- special legislative perhaps might par- has received allow full or at least ableness 62(2) trips § treatment. 26 U.S.C.A. tial deduction Commentary assignments. (D). Mertens, Compare See Code home between 62.6, Patterson, 62.7. §§ Williams v. put *10 F.2d night” which to rest the “over- 19, supra. rule. See note interfacility of the Heuer settled the contentions movements the deductible Bar Pilots. The doctrine are in- New Orleans from to and Galveston and those settle, mind, decisis, my matter, could, to should stare as a technical we sufficient ado, judgment. like contentions more the simply dis- without Our affirm by pilots. disposition made indicates, however, The are Houston there that cussion thorough it majority, learned perhaps for articulated some factors be, may appear 26, supra. as no and: see, g., to I view more here, note first e. time ought decisis parties a desertion stare less than or of the one both Either showing ad I was- standards for hoc standards. make whatever be entitled taught case”, by that a “red either cow as to if desired them made can be against you, dispositive. admittedly This was de- which are these elements by lawyers premise, and work Code, which live U.S.C.A. Judicial The ductible. bread, in this- Code, and earn their if dead not 26 U.S.C.A. § and the Tax circuit, I recognize apрears to in extremis. be 7482(c) (1), both raise one small return power, appropriate, voice its when Court has the meaning. life and permit introduc- a remand direct evi- of further and consideration tion judging here, done kind of litigation, this civil In traditional dence. precedent be- of established abandonment occasionally we re- done where is even it, disagree judges with individual cause trial, complete, partial or for a new mand part only on the to confusion leads hold an instructed ver- even we encourag- the district courts. bar and granted. See Gulf been dict should have litigation on both trial es increased Wright, Cir., 1956, 236 F. Corp. Oil lawyer appellate advise No can levels. Co., Cir., 48; Duke v. Oil 2d Sun Judge is; law no District client what the 853, 865, rehearing, Judge rely with assur- Tax Court can doWe not undertake to blue- upon precedent. ance proceedings supplemental print the considered This left to remand. this invitation I served on case for its initial Appeals. Perhaps Court discretion I should the Court procedure my both as to the determination refrain criti- mind cizing manners and any, extent, my if my betters, followed and only hosts not but supplemental permits evidence which such as well. change any compels in the Tax Court’s my But invitation resulted elements. decision as to these deductible Ap- docket of the overcrowded Court further Affirmed remanded being peals Circuit, Fifth from its proceedings herewith. not inconsistent by appeals overpowered increas- ever many ing persuaded I am numbers. Judge (dissent- SIMPSON, District appeals only of this Court’s occur be- ing) : caught point cause the bar has now majority opinion 498) (page adopted states mind what credo: never (Tax) that “The Commissioner and Court week, the law if was last let’s see it’s recognized, for, and allowed often, deduction with- different next week. Far too job costs between compelling reason, it out valid and turns during sites and also those to and to be out different. practical pur For all Galveston. then, hope judge As a district I poses, the case Heuer v. Commis like civility proper deference breach sioner, 1959, mem., 32 T.C. aff’d protest. voice which, upon might more, without we well affirm.” respectfully I dissent from all myself except this, majority opinion I find in accord with than which does more might, precedent I would omit the word affirm on the Heuer v. Com* simply say: missioner, supra. “we affirm”.