Peurifoy v. Commissioner of Internal Revenue/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice WHITTAKER concur, dissenting.

As Commissioner of Internal Revenue v. Flowers, indicated, the prerequisites to a deduction for travel expenses under § 23(a)(1)(A) are threefold: The expenses must be reasonable and necessary, they must be incurred while 'away from home,' and there must be a 'direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.' (Emphasis supplied.) 326 U.S. at page 470, 66 S.Ct. at page 252. I think the taxpayers in this case have met those conditions and should be allowed the claimed deductions.

The meaning of 'home' was expressly left undecided in Flowers but is squarely presented in the instant case. I disagree with the Commissioner's contention that 'home' is synonymous with the situs of the employer's business. Such a construction means that the taxpayer who is forced to travel from place to place to pursue his trade must carry his home on his back regardless of the fact that he maintains his family at an abode which meets all accepted definitions of 'home.' I do not believe that Congress intended such a harsh result when it provided a deduction for traveling expenses. These construction workers do not have a permanent locus of employment as does the merchant or factory worker. They are required to travel from job to job in order to practice their trade. It would be an intolerable burden for them to uproot their families whenever they change jobs, if those jobs happen to take them to a different locality. When they do not undertake this burden they are living 'away from home' for the duration of the term of the jobs.

We have, then, not a question of fact which should be resolved below rather than here. We have a mixed question of law and fact. The facts will turn largely on the resolution of the question of law. The error below was mainly in assuming (albeit silently) a narrow construction of the statutory term 'home.'