The opinion
ELY, Circuit Judge
(dissenting):
I dissent. With our late Brother Orr, one of the noblest of men, I discussed my opposing views, and he, without doubt, would have expected and encouraged me to record them.
When the Marine Corps transferred the taxpayer to his post of duty in Japan, the assignment was for a period of fifteen months. The period was subject to extension by orders of the Marine Corps. As the majority points out, there were forty-nine days during taxpayer’s fourteen and one-half months of service in Japan when he was away from his station on temporary duty, placed in “travel status”, and reimbursed for his expenses. For the remainder of the period of overseas duty, approximately thirteen months, the taxpayer received from the Government, in addition to his lodging, a tax-exempt payment of approximately $145 per month as a quarters and subsistence allowance. Notwithstanding the fact that the allowance for subsistence was $42.50 per month, the majority upholds the taxpayer’s claim that the entire cost of his meals during the approximate thirteen-month period is a tax-deductible expense allowance. In so doing, the majority casts our circuit into direct conflict with Revenue Ruling 55-571, 1955-2 Cum.Bull. 44, 1 and with the decision of the Fourth Circuit in Bercaw v. Commissioner of Internal Revenue, 165 F.2d 521 (1948), wherein the Court wrote,
“The taxpayer was engaged in the business of an Army officer. His place of business was his particular Army post. If his Army duties required him to travel, he would have received a per diem travel allowance * * *. Thus the expendi *301 tures for meals and striker service while at this post were personal living expenses and non-deductible * * #. This conclusion is inescapable when it is remembered that this officer has been paid commutation of quarters and a subsistence allowance, both of which allowances are not considered as income for the purposes of taxation.”
165 F.2d at 524 . (Citations omitted.) See also James R. Whitaker, 24 T.C. 750 (1955).
Regardless of whether or not the taxpayer was- “away from home” within the meaning of that language as it is used in section 162(a)(2), the only expenses which are deductible under the section are “traveling expenses”. Flowers v. Commissioner of Internal Revenue, 326 U.S. 465 , 66 S.Ct. 250 , 90 L.Ed. 203 (1946). “The expense must be a.reasonable and necessary traveling expense, as that term is generally understood.” 326 U.S. 470 , 66 S.Ct. 252 . (Emphasis added.) It should follow that the question is not whether the taxpayer was “away from home”, but whether during the period for which the expense is claimed he was actually “traveling”. The Tax Court has determined that he was not, and our duty is to sustain the finding absent demonstration by the taxpayer that the finding was clearly erroneous. Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291 , 80 S.Ct. 1190 , 4 L.Ed.2d 1218 (1960); Truck Terminals, Inc. v. Commissioner of Internal Revenue, 314 F.2d 449,455 (9th Cir. 1963); Young v. Commissioner of Internal Revenue, 268 F.2d 245 (9th Cir. 1959).
A factual determination of the Tax Court, supported by substantial evidence, should not, on review, be set aside as “clearly erroneous”, unless “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Commissioner of Internal Revenue v. Duber-stein, supra, 363 U.S. at 291 , 80 S.Ct. at 1200 , quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 , 68 S.Ct. 525 , 92 L.Ed. 746 (1948), and, in my opinion, the whole body of evidence clearly supports the Tax Court’s finding. In the first place, the period of time for which the taxpayer was assigned to his Japanese post made of that post his “permanent” station in a military sense. In making provisions for “travel and transportation allowances * * * upon a change of permanent station” (37 U.S. C. § 404(a). (Emphasis added.)), the Congress has recognized that a soldier’s “permanent station”, being subject to “change”, is never permanent in an enduring sense. In the present case, however, the period of assignment, fifteen months with possibility of extension, was factually determined to be an “indefinite” period rather than a “temporary” period, and this should be an important, if not a controlling, consideration. Peu-rifoy v. Commissioner of Internal Revenue, 358 U.S. 59 , 79 S.Ct. 104 , 3 L.Ed. 2d 30 (1958). In the second place, the Marine Corps itself determined that the taxpayer, during his fourteen and one-half months in Japan, was not in “travel status” except for the forty-nine days when he was temporarily detached to locations comparatively short distances from his “permanent” Japanese post. If it be conceded that the Marine Corps’ determination should not be conclusive, it nevertheless constitutes strong support for the Tax Court’s factual decision. William W. Todd, 10 T.C. 655 (1948). See also Allan Cunningham, 22 T.C. 906 (1954).
The Congress has undertaken to assure that military men who serve our country overseas shall not suffer undue financial loss. It is provided that the Secretaries of the uniformed services may authorize payment to overseas military personnel of per diem allowances related to the cost of living, “including a cost of * * * subsistence”, and such allowance is authorized to be made to the soldier “whether or not he is in a travel status”. 37 U.S.C. § 405 , revising in 1962 without substantial change The Career Compensation Act of 1949, ch. 681, § 303(b), 63 Stat. 813 . From these provisions I see an intent on the part of Congress that *302 the soldier assigned to overseas duty shall not sustain significant financial loss and that any such loss shall be prevented by the direct payment of travel expenses and increased allowances rather than by tax deduction which might properly be claimed by others for whom no specific increased benefits are provided. 2
I would affirm the Tax Court.
. “members of the Armed Forces of the United States on permanent duty assignments at official stations overseas are not traveling ‘away from home’ and may not deduct their expenses for meals and -lodging at such locations, even though they are required to maintain homes in the United States for their families who are not allowed to accompany them.”
. I do not believe that in the selection of qualified military personnel for overseas duty, the Department of Defense should be invited to concern itself with increased cost to the Government depending upon whether one soldier is “away from home” and another soldier, with a different family status, is not.
In the so-called “Cuban crisis” of recent years, we read that the dependents of our military personnel stationed at Guantanamo Bay were removed to the United States. Would the majority say that those servicemen, immediately upon the transfer of their dependents, became “away from home” and commenced to “travel”?
It is anomalous and discriminatory that our servicemen now engaged in Vietnam are entitled, under the majority opinion, to a more favorable tax treatment in our circuit than are those who, while doubtless fighting with equal valor, are denied deductions for their “traveling” expenses in the Fourth Circuit and, apparently, in the Sixth Circuit also. See Commissioner of Internal Revenue v. Motch, 180 F.2d 859 (6th Cir. 1950), wherein the court wrote, at 861,
“[An armed services officer] is limited in his personal expenditures chargeable to the government, or tax-wise deductible, to the usual stipends fixed under appropriate regulations adopted in pursuance of Acts of Congress for his subsistence and travel expenses.”