Howe A. Stidger and Betty M. Stidger v. Commissioner of Internal Revenue

This is another of those troublesome cases involving the question whether certain travel expenses incurred by a taxpayer were incurred while “away from home” and are deductible for federal income tax purposes under section 162 of the Internal Revenue Code of 1954. At the time the deduction involved here was claimed, section 162 read in pertinent parts:

The facts, found by the Tax Court as stipulated, are substantially as follows. During the taxable year 1958 taxpayer was a captain in the United States Marine Corps. For approximately two and one half years prior to October 1, 1957, he had been attached to an air squadron stationed in El Toro in Southern California. On October 1, 1957, taxpayer, together with his component, was assigned to duty in the Far East with the First Marine Aircraft Wing, a part of the Aircraft Fleet Marine Force, Pacific, with administrative headquarters at Marine Corps Air Station, El Toro (Santa Ana) California. It was impossible for taxpayer to be accompanied abroad by his family because Marine Corps orders prohibited dependents of personnel assigned to duty with the Aircraft Fleet Marine Force, Pacific, from accompanying such personnel or…

(dissenting):

I dissent. With our late Brother Orr, one of the noblest of men, I discussed my opposing views, and he, without doubt, would have expected and encouraged me to record them.

When the Marine Corps transferred the taxpayer to his post of duty in Japan, the assignment was for a period of fifteen months. The period was subject to extension by orders of the Marine Corps. As the majority points out, there were forty-nine days during taxpayer’s fourteen and one-half months of service in Japan when he was away from his station on temporary duty, placed in “travel status”, and reimbursed for his expenses. For the remainder of the period of overseas duty, approximately thirteen months, the taxpayer received from the Government, in addition to his lodging, a tax-exempt payment of approximately $145 per month as a quarters and subsistence allowance. Notwithstanding the fact that the allowance for subsistence was $42.50 per month, the majority upholds the taxpayer’s claim that the entire cost of his meals during the approximate thirteen-month period is a tax-deductible expense allowance. In so doing, the majority casts our circuit into direct conflict with Revenue Ruling 55-571,…

355 F.2d 294 66-1 USTC P 9161 Howe A. STIDGER and Betty M. Stidger, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. No. 19630. United States Court of Appeals Ninth Circuit. Dec. 27, 1965. Howe A. Stidger and Betty M. Stidger, in pro. per. Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Morton K. Rothschild, Michel Cavanaugh, Dept. of Justice, Washington, D.C., for respondent. Before MERRILL, BROWNING and ELY, Circuit Judges. PER CURIAM: 1 1 This is another of those troublesome cases involving the question whether certain travel expenses incurred by a taxpayer were incurred while 'away from home' and are deductible for federal income tax purposes under section 162 of the Internal Revenue Code of 1954. At the time the deduction involved here was claimed, section 162 read in pertinent parts: 2 2 '(a) In General-- There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including * * * 3 (2) traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business * * *.' 4 The…