The opinion
Wilbur, J., concurring: While I concur with the majority, I add a few additional thoughts concerning the extraordinary contention that meals furnished, by cash contributions of the employer are excludable from gross income without regard to section 119. This strikes me as demonstratively false for several reasons:
(1) Cash is more presumptively compensatory than in-kind benefits. In permitting an exclusion for meals and lodging provided in kind, Congress required that the in-kind benefits be provided (a) on the business premises, (b) for the convenience of the employer, and (c) in the case of lodging, as a condition of employment. If these benefits, when provided through cash payments to the employee, can be excluded solely on the basis that they are noncompensatory, conditions (a) and (c) can be effectively eliminated from the statute. Since in determining whether the cash payment is compensatory the considerations invoked by the “convenience of the employer test” (regardless of what label we ascribe to the criterion) will be applied, the only condition of section 119 that would be applicable would be the convenience of the employer.
(2) This would mean that where lodging is provided, very close to the business premises of the employer for the convenience of the employer the additional requirements of section 119 that the lodging be provided on the business premises as a condition of employment can be avoided by simply providing the equivalent of the rental payment to the employee in cash. The strict construction of the statute provided by Charles N. Anderson, 42 T.C. 410 (1964), revd. 371 F. 2d 69 (6th Cir. 1966), 1 can easily be circumvented.
(3) Even those courts that have liberally construed section 119 2 to encompass cash payments nevertheless recognize that Congress in any event predicated the exclusion on all of the conditions contained in section 119 being met. We, of course, have held that the benefits of the exclusion provided by section 119 are not available in the case of cash’payments. (Burl J. Ghastin, 60 T.C. 264 (1973)). It would be anomalous in the extreme to adhere to this position arid nevertheless conclude that an exclusion for cash payments is permissible without regard to section 119 if they are for the convenience of the employer (however differently a criterion invoking the same considerations may be phrased) and therefore noncompensatory.
(4) It would be an extraordinary interpretation of the statute to permit cash payments for meals and lodging to be excluded under conditions more favorable than that provided for in-kind benefits under section 119. Additionally, the enactment and repeal of section 120, which dealt specifically with subsistence payments for meals and lodging would be completely ignored by such interpretation. 3
Quealy, J., agrees with this concurring opinion.
See also Jack B. Lindeman, 60 T.C. 609, 617 (1973) (concurring opinion of Tannenwald, J.).
United States v. Barrett, 321 F. 2d 911 (5th Cir. 1963), affg. 205 F. Supp. 307 (S.D. Miss. 1962); United States v. Morelan, 356 F. 2d 199 (8th Cir. 1966), affg. 237 F. Supp, 879 (D. Minn. 1965); United States v. Keeton, 383 F. 2d 429 (10th Cir. 1967), affg. 256 F. Supp. 576 (D. Colo. 1966).
. Sec. 120,1.R.C. 1954; H. Rept. No. 1337, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess. 19, A39-A40 (1954); S. Rept. No. 1622, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess. 19,19Í (1954); Technical Amendments Act of 1958, Pub. L. 85-866, 72 Stat. 1607; H. Rept. No. 775, 85th Cong., 1st Sess. (1957), 1958- 3 C.B. 817 ; S. Rept. No. 1983,85th Cong., 2d Sess. (1958), 1958- 3 C.B. 935 -36; Conf. Rept. No. 2632, 85th Cong., 2d Sess. (1958), 1958- 3 C.B. 1205 .