The opinion
TaNNRNWALd, </., concurring: I merely wish to emphasize the critical distinction which has to be made in this case between our views of the needs of our society and the application of a statutory provision of the tax law. Unquestionably, the role of the police officer has assumed transcendent importance and it may well be highly desirable to utilize tax incentives to improve his general ability to discharge that role. But it does not follow that such a requirement of our society should be imported into the tax laws by the courts independent of action by the legislature.
Respondent’s 1958 regulations (in effect in 1964), as distinguished from those adopted in 1967, emphasized the purpose for which the education was undertaken. From this, my dissenting colleagues con-elude that the taxpayer’s subjective intent is the exclusive determinant. If that were true, I would be inclined to agree that the deduction herein should be allowed. See dissenting opinions in Ramon M. Greenberg, 45 T.C. 480 (1966), revd. 367 F. 2d 663 (C.A. 1, 1966). But I think that respondent’s 1958 regulations require a reasonable nexus between the courses taken and the skills to be improved, as well as the need for the stated purpose on the taxpayer’s part, in order to justify a deduction. Greenberg does not hold otherwise; in that case the relationship between training in psychoanalysis and the practice of psychiatry was clear and consequently the Court of Appeals view subjective intent as the “central” consideration. See 367 F. 2d at 665 .
Generally speaking I suppose it can be said that there is a relationship between the employment skills of police officers (or, for that matter, most employees) and the level of their education. The mere existence of some such relationship does, however, not compel the conclusion that the education is “appropriate and helpful” within the meaning of that phrase as announced in Cosimo A. Carlucci, 37 T.C. 695, 699 (1962). It seems to me that “improvement of skills” implies more than an increase in the level of general competence. Conceivably in some situations a general college education may well produce an “improvement in skills” but, in this case, I think the necessary reasonable nexus is lacking.
We should not overlook the fact that we are dealing with a broad statute, providing for the deduction of ordinary and necessary business expenses, and not a specific provision reflecting legislative policy in the area of educational expenses. This is particularly the case in light of the specific provision denying a deduction for personal expenses. Sec. 262. It is not without significance that Congress has entered the educational arena but only in the limited area of scholarships and fellowships. Sec. 117.
Moreover, if a general increase in value to the police department were to be equated with “improvement of skills,” as petitioner contends, the recipients of such a “subsidy” might well be the eager rather than the deserving — i.e., those who simply want to secure further education without regard to the degree of benefit to the police department as distinguished from those who had demonstrated the most merit, who would be likely to benefit the most from further education or would most likely remain with the department. The tailoring of the subsidy to desired objectives is properly the function of the legislature, not the judiciary. In short, if increased erudition is to be considered an “improvement of skills” and allowed as a deductible expense to police officers or others, I think Congress should provide the foundation for such encouragement to social and political progress. Cf. Elmer L. Reese, Jr., 45 T.C. 407 (1966), affirmed per curiam 373 F. 2d 742 (C.A. 4, 1967).
FeatherstoN, J., agrees with this concurring opinion.