Airline pilot taxpayer is not entitled under § 262 of the
Internal Revenue Code to an exclusion from "personal" expenses for
the costs of commuting by car from his home to his place of
employment because, by happenstance, he must carry incidentals of
his occupation with him.
Certiorari granted; 472 F.2d 561, affirmed.
PER CURIAM.
Petitioner Donald Fausner, a commercial airlines pilot, who
regularly traveled by private automobile from his home to his place
of employment and back again, a round trip of approximately 84
miles, sought to deduct the entire cost of commuting under § 162(a)
of the Internal Revenue Code of 1954, on the theory that his
automobile expenses were incurred to transport his flight bag and
overnight bag, and thus constituted ordinary and necessary business
expenses. It is not disputed that petitioner would have commuted by
private automobile regardless of whether he had to transport his
two bags. The Tax Court disallowed the deduction
in toto.
On appeal, the Court of Appeals for the Fifth Circuit affirmed the
decision of the Tax Court. 472 F.2d 561.
This issue has been addressed by two other circuits,
Sullivan v. Commissioner, 368 F.2d 1007 (CA2 1966), and
Tyne v. Commissioner, 385 F.2d 40 (CA7 1967). Both of
these circuits concluded that some allocable portion of the
expenses incurred could be deducted as an ordinary and necessary
business expense. The Court of Appeals for the Fifth Circuit
refused to follow those cases on the
Page 413 U. S. 839
ground that there was no rational basis for any allocation
between the nondeductible commuting component and the deductible
business component of the total expense.
As the Court of Appeals indicated, Congress has determined that
all taxpayers shall bear the expense of commuting to and from work
without receiving a deduction for that expense. We cannot read §
262 of the Internal Revenue Code [
Footnote 1] as excluding such expense from "personal"
expenses because by happenstance the taxpayer must carry
incidentals of his occupation with him. Additional expenses may at
times be incurred for transporting job-required tools and material
to and from work. [
Footnote 2]
Then an allocation of costs between "personal" and "business"
expenses [
Footnote 3] may be
feasible. But no such allocation can be made here.
We grant the petition for certiorari and affirm the judgment
below.
MR. JUSTICE BLACKMUN would grant the petition for a writ of
certiorari and set the case for oral argument.
[
Footnote 1]
"Except as otherwise expressly provided in this chapter, no
deduction shall be allowed for personal, living, or family
expenses." 26 U.S.C. § 262.
[
Footnote 2]
See Rev.Rul. 63-100, 1963-1 Cum.Bull. 34.
[
Footnote 3]
Sec. 162(a) of the Internal Revenue Code of 1954, 26 U.S.C. §
162(a).
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