# Gilberg v. Commissioner

> United States Tax Court · January 7, 1971 · 55 T.C. 611

URL: https://www.frixlaw.com/law-library/cases/4481702

## Case

- **Full name:** Harold and Doris S. Gilberg v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** January 7, 1971
- **Citations:** 55 T.C. 611; 1971 U.S. Tax Ct. LEXIS 201
- **Precedential status:** Published
- **Opinion:** Concurrence by Tannenwald
- **Judges:** Simpson,Tannenwald,Quealy
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4481702

## Opinion text

TaNNeNWAld, /., concurring: I start from the premise that commuting expenses are not deductible. Such being the case, I think that commuting involves not only the transportation of the physical body of the taxpayer but whatever accoutrements are necessary to carrying out his employment — an employment which he selected as a matter of personal choice.
In view of the foregoing, I would be inclined to follow the rule set down by this Court in Lawrence D. Sullivan, 45 T.C. 217 (1965), reversed and remanded 368 F. 2d 1007 (C.A. 2, 1966), at least in those cases where the need to carry tools was a known necessity at the commencement of a taxpayer’s employment. Respondent, however, has adopted a “but for” test — namely, if the taxpayer would not have driven his automobile except for the need to carry bulky objects required in his employment, he is entitled to a deduction of all of 'his transportation costs. See Rev. Rui. 63-100,1963- 1 C.B. 34 .
The thrust of efforts to etch out exceptions to the general rule disallowing commuting expenses, when combined with the obvious desirability of articulations of law for the guidance of taxpayers, produces a most difficult situation. Unfortunately, in areas such as involved herein, the English language is not imbued with sufficient precisional quality to do more than permit the development of a broad principle which can be readily applied. See Seaford Court Estates Ltd. v. Asher, [1949] 2 K.B. 481, 498. I think Rev. Rul. 63-100 provides a reasonable frame of reference within which to determine the availability of a deduction on the assumption that some deduction is allowable. Cf. United States v. Correll, 389 U.S. 299 (1967). Any attempt to allocate deductions in situations such as this is like trying to square a circle since the same transportation simultaneously serves a dual purpose. Such a situation is to be contrasted with those where at any one time the expense incurred is either business related or personal.
Quealt, /., agrees with this concurring opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4481702. Public record. Not legal advice.