The opinion
Fat, J., dissenting: I agree with the views Judge Mulroney expresses in his dissenting opinion.
This case does not involve the validity of a rule or regulation promulgated by the Commissioner. Nor does it involve broad questions of policy. The issue in the case is whether petitioner is entitled under the 1958 or the 1967 1 version of section 1.162-5, Income Tax Kegs., to deduct his educational expenses. The issue with respect to the 1958 regulation turns on the factual question whether petitioner’s primary purpose in undertaking the education was to maintain or improve skills required by him in his employment. The question with respect to the 1967 regulation is the same, except that petitioner’s primary purpose is not germane. Judge Mulroney, the trier of fact, is the most competent among us to decide these questions. He had the advantage of observing live evidence. We see only a cold record. On the factual questions to be decided, we should not override him.
I would accept Judge Mulroney’s judgment that petitioner has met his burden of proving that his educational expenses are deductible under the Commissioner’s regulations.
See Rev. Rul. 68-191, 1968- 1 C.B. 67 .