William C. Dziak, Wickliffe, Ohio, for petitioner-appellant.

Gilbert E. Andrews, John F. Murray, M. Carr Ferguson, Michael L. Paup, Richard W. Perkins, John A. Duceck, Philip Brennan, Tax Division, U. S. Dept. of Justice, N. Jerold Cohen, Chief Counsel, I. R. S., Washington, D. C., for respondent-appellee.

Before LIVELY and MERRITT, Circuit Judges, and DIGGS-TAYLOR, District Judge.*

This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner is appealing the decision of the United States Tax Court which held that amounts expended by the taxpayer for ballroom dancing lessons in 1977 were not deductible as expenses paid for "medical care" within the meaning of Section 213 of the Internal Revenue Code of 1954, 26 U.S.C. § 213.

The petitioner is a sixty-six year old widow who was being treated by her physician for arthritic pains in her back and neck and for nervous tension. The dance lessons taken at an Arthur Murray Studio were recommended by her physician as a form of therapy for her arthritic pains and to help relax tensions. The expense was disallowed by the Commissioner on the basis that dance lessons are personal expenses and not medical expenses under Section 213.

It is established that the burden is on the taxpayer to show that the Commissioner's determination is erroneous. Wallace v. United States, 439 F.2d 757, 759 (8th Cir.), cert. denied, 404 U.S. 831, 92 S. Ct. 71, 30 L. Ed. 2d 60 (1971).

Petitioner has failed to establish that the dance lessons bear such a direct and proximate therapeutic relation to some physical or mental function or structure of the body as to constitute a deductible medical expense. Borgman v. C.I.R., 438 F.2d 1211, 1212 (9th Cir. 1971). The fact that the dance lessons were beneficial to petitioner does not render an otherwise personal expense deductible under the "medical care" provision of the Code. Thoene v. Commissioner, 33 T.C. 62 (1959); Cohn v. United States, 240 F. Supp. 786, 789 (D.C.Ind.1965). It is not unusual for doctors to recommend to a patient a course of personal conduct and activity which will result in health benefits, but those expenses are generally considered ordinary personal expenses. Thoene v. Commissioner, supra.

It is therefore ORDERED that the decision of the Tax Court be and hereby is affirmed pursuant to Rule 9(d)3, Rules of the Sixth Circuit, because the questions on which the decision depends are so unsubstantial as not to need further argument.