Stringham v. Commissioner

Murdock, /., concurring: Section 23 (x) provides that the term “medical care” shall include amounts paid, inter alia, for the cure or mitigation of disease. The prevailing opinion attempts to force the facts to fit those particular words, ignoring the fact that the term “medical care” also includes amounts paid for the prevention of disease. That opinion proceeds upon the unsound theory that Genevieve was sent to Tucson and kept there for over six months “primarily” to cure “the particular attack of bronchitis” which she contracted several days after November 2, 1944, and not primarily to prevent recurrence of the respiratory diseases to which she was susceptible. It states: “Moreover, the record does not support the slightest inference that petitioner sent his five-year old daughter to Arizona for any purpose other than making it possible for her to recover from her then present illness.”

I disagree with that interpretation of the facts. There is no finding that the parents took the child to Arizona merely to cure her of the early November attack of bronchitis, that the attack was still in progress when she left Cleveland or when she arrived in Tucson, that any doctor was consulted in Tucson, or that “the particular attack of bronchitis” still needed curing during the following six months of her stay there. It stands to reason that she must have recovered sufficiently before they left home to lead the parents to think she was well enough to undertake the. trip. The school would not accept a child with any communicable disease. Most important, however, are the findings that the parents sought “a better winter climate,” “a suitable climate,” that is, a climate where Genevieve would be less likely to contract further ills than would have been the case in Cleveland. They obviously sought primarily long-range prevention, rather than merely the cure of or recovery from any recent attack of bronchitis. Every indication in the record is that the primary purpose of the parents in taking the child to and having her remain in Arizona for six months was to prevent the recurrence of those respiratory diseases to which she had been susceptible in Cleveland. They sought to prevent disease by placing her in “a better winter climate.” The real question presented for decision on these facts is whether the contésted expenditures were “paid for * * * prevention of disease” and were “extraordinary medical expenses deductible under section 23 (x)” rather than personal, living, or family expenses within the meaning of section 24 (a). The majority opinion avoids that question.

This is one of the first cases to be decided under section 23 (x), and care must be exercised to carry out the intent of the statute without inviting abuse. The words of section 24 (a) clearly indicate that the two sections are to be read together. Thus, a line must be drawn between living expenses which are not deductible under section 24 (a) and “extraordinary medical expenses deductible under section 23 (x).” The questions of the deductibility of expenses where someone went permanently to Arizona to prevent illness or where someone went on a sort of vacation with general health benefit in mind are not present in this case and need not be decided at this time. At least a part of the expenses here in question represented extraordinary medical expenses as opposed to personal, living, or family expenses. The fair preponderance of the evidence is that there was a real emergency, justifying the extraordinary measures which were taken to send this child to Tucson in the hope that the climate there would prevent the recurrence of the respiratory diseases which had struck her so frequently in Cleveland. Therefore, some of the deductions claimed in this case come within section 23 (x). Expenses could have been incurred in Tucson which would not be deductible. These might include amounts paid for clothing, schooling, and any similar items not strictly for “medical care.” That is, she would have some personal, living, or family expenses while there, and it was incumbent upon the petitioner to show that the expenses claimed were for “medical care.” The division made in the majority opinion may approximate the correct amount.

Leech and KeRN, JJ., agree with this concurring opinion.