Greenberg v. Commissioner

Withey, J., concurring: I concur in the result of the majority reached herein but cannot agree that the existence of a plan or intention on the part of the taxpayer to practice as a psychoanalyst has any bearing upon the conclusion whatsoever. Arnold Namrow, 33 T.C. 419 , affd. 288 F. 2d 648 , and Grant Gilmore, 38 T.C. 765 , stand for the proposition that where a taxpayer has acquired a new skill, whether or not that skill will aid him in the carrying on of an existing trade or profession, the expense of acquiring the new skill is personal in nature and nondeductible under section 262 of the 1954 'Code. To me, it is unrealistic, not to say naive, to consider that in enacting section 162(a) of the 1954 Code Congress would leave the deductibility or nondeductibility of such an expense to the mere whim of the taxpayer. Tinder Namrow and Gilmore, the existence of an intention or plan to use a new skill acquired has no bearing upon the deductibility of the expenses incident to the acquisition of that skill. Nothing can be more personal to a taxpayer or more uncertain in its character than his intention or whim.

In my view confusion on this issue has resulted in large part from respondent’s regulation, sec. 1.162-5 (a) (1). If the wording “Maintaining or improving skills required by the taxpayer in his employment or other trade or business * * *” is to be read to allow deduction of the expense of acquiring a new skill'based only upon the intention or whim of the taxpayer with respect to the ultimate practice of that skill, that section of the regulation goes way beyond the framework of section 162(a) of the Code and should be held to be invalid.

Bruce, /., agrees with this concurring opinion.