Richard R. Sibla v. Commissioner of Internal Revenue, Robert E. Cooper v. Commissioner of Internal Revenue

611 F.2d 1260 80-1 USTC P 9143 Richard R. SIBLA, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Robert E. COOPER, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Nos. 78-1295, 77-3815. United States Court of Appeals, Ninth Circuit. Jan. 7, 1980. Robert E. Radke, Van Nuys, Cal., for Commissioner of Internal revenue. John B. Furay, Lewis & Marenstein, Los Angeles, Cal., for respondent-appellant. James A. Riedy, Washington, D. C., for Robert E. Cooper; M. Carr Furguson, Washington, D. C., on brief. John B. Furay, Los Angeles, Cal., amicus curiae. Richard R. Sibla, pro se. Appeal from the Decision of the United States Tax Court. Before KENNEDY and TANG, Circuit Judges, and CURTIS, * District Judge. CURTIS, District Judge: We have before us two appeals from decisions of the tax court upon nearly identical fact situations, the difference between them being of no relevance on this appeal. A single opinion therefore seems appropriate for the disposition of both. These appeals involve an attempt by the taxpayers to deduct from their respective incomes their share of expenses of a mandatory organized mess at the firehouse…

dissenting:

I respectfully disagree with the majority’s holding. In my view the taxpayers’ expenses for meals in common with co-employees are neither business expenses deductible under I.R.C. § 162 nor meals furnished by the employer excludable under I.R.C. § 119. Inasmuch as only a plurality of seven out of fifteen judges on the Tax Court panel found that these were business expenses, I do not believe that we are bound to give that finding decisive weight. Alternatively, since the Tax Court’s opinion in Cooper preceded the Supreme Court’s decision in Commissioner v. Kowalski, 434 U.S. 77 , 98 S.Ct. 315 , 54 L.Ed.2d 252 (1977), in which the Court construed section 119 quite narrowly to meals actually furnished by the employer, rather than meals furnished by the employees in a facility provided by the employer, I think that the Tax Court’s decision should be reversed on the authority of Kowalski .

A result contrary to the one reached by the Tax Court does not depend upon an overly literal reading of the statute. Although deductibility under section 162, rather than exclusion of income under section 119, presents the more substantial argument for the taxpayers here, under either…

We have before us two appeals from decisions of the tax court upon nearly identical fact situations, the difference between them being of no relevance on this appeal. A single opinion therefore seems appropriate for the disposition of both.

These appeals involve an attempt by the taxpayers to deduct from their respective incomes their share of expenses of a mandatory organized mess at the firehouse where they were stationed. The tax court decided in favor of the taxpayers and the Commissioner has appealed.

The relevant facts are largely undisputed.

FACTS

During the relevant period the taxpayers were employed as firemen by the Los Angeles Fire Department and were assigned to Fire Station No. 89 in North Hollywood, California. They normally worked 24-hour shifts and were not permitted to leave the fire station on personal business while on duty.

In the late 1950’s a desegregation plan was implemented by the Fire Department. Previously segregated posts were consolidated in order to eliminate segregation within a post. The Board of Fire Commissioners adopted rules requiring all firemen at each fire station to participate in a nonexclusionary organized mess at the station house,…