Opinion

Primuth v. Commissioner

  • 54 T.C. 374
  • 1970 U.S. Tax Ct. LEXIS 199
Court
United States Tax Court
Filed
Mar 2, 1970
Status
Published
Author
Tietjens
On the bench
Sterrett,Tannenwald,Forrester,Fay,Dawson,Simpson,Tannenwald,Featherston,Fay,Irwin,Tietjens,Drennen,Withey,Atkins,Hoyt
Cited by
345 cases
Authority
More cited than 10.3%

employee held to be in a trade or business for purposes of section 162

How later courts described this case

  • employee held to be in a trade or business for purposes of section 162
  • employee held to be in a trade or business for purposes of sec. 162
  • fee in order to secure employment held deductible

Written by the judges who cited it.

The opinion

TietjeNS, J., dissenting: I respectfully dissent. Of course, as the majority points out, the taxpayer was in the business of being a salaried corporate employee. But I would confine that concept much more narrowly than does the majority. I would say the taxpayer was in the business of being an employee of Foimdry when the claimed deductible expenses were incurred. The expenses, however, were not related to his employment by Foimdry but were paid to obtain a new job with another employer. To me this is the same as incurring expenses in locating or finding a new business. Such expenses are not deductible as business expenses because they were not connected with taxpayer’s existing employment. See the regulations under section 212 which provide in part as follows:

(f) Among expenditures not allowable, as deductions under section 212 are the following: * * * expenses such as those paid or incurred in seeking employment or in placing oneself in a position to begin rendering personal services for compensation, * * *

And see McDonald v. Commissioner, 323 U.S. 57 , and the hoary case of Mort L. Binder, 5 B.T.A. 1181 , where the taxpayer was a salaried fair manager who, when his employment ended at one place or in the event of his resignation, sought a new salaried employment in some other State or municipality and where we denied deduction of his expenses in going from place to place in connection with seeking and changing jobs.

DeeNNEN, Withev, AtkiNS, Scott, AND Hovt, <//., agree with this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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