17 T.C. 130">*131 The Commissioner1951 U.S. Tax Ct. LEXIS 117">*118 has determined a deficiency in petitioner's income tax of $ 377.26 for the year 1946. The deficiency is due to two adjustments made by the Commissioner to the net income as disclosed by petitioner's return. These adjustments were:

Petitioner does not contest the correctness of adjustment (b). Adjustment (a) is explained in the deficiency notice as follows:

(a) It is held that the amount of $ 1,456.50, representing school tuition for two minor children and claimed as a medical expense, is not allowable.

Petitioner contests this adjustment by an appropriate assignment of error.

FINDINGS OF FACT.

Petitioner is an individual residing in Elmhurst, New York. The return for the period involved was filed with the collector of internal revenue for the second district of New York.

During the taxable year petitioner was the husband of Helen H. Ochs. They had two children, Josephine age 6 and Jeanne age 4.

On December 10, 1943, a thyroidectomy was performed on petitioner's wife. A histological examination disclosed a papillary carcinoma of the thyroid with multiple lymph node metastases, according to the surgeon's report. 1951 U.S. Tax Ct. LEXIS 117">*119 During the taxable year the petitioner maintained his two children in day school during the first half of the year and in boarding school during the latter half of the year at a cost of $ 1,456.50. Petitioner deducted this sum from his income for the year 1946 as a medical expense under section 23 (x) of the Internal Revenue Code.

During the taxable year, as a result of the operation on December 10, 1943, petitioner's wife was unable to speak above a whisper. Efforts of petitioner's wife to speak were painful, required much of her 17 T.C. 130">*132 strength, and left her in a highly nervous state. Petitioner was advised by the operating surgeon that his wife suffered from cancer of the throat, a condition which was fatal in many cases. He advised extensive X-ray treatment after the operation. Petitioner became alarmed when, by 1946, his wife's voice had failed to improve, and believed that the irritation and nervousness caused by attempting to care for the children at a time when she could scarcely speak above a whisper might cause a recurrence of the cancer. Petitioner and his wife consulted a reputable physician and were advised by him that if the children were not separated from1951 U.S. Tax Ct. LEXIS 117">*120 petitioner's wife she would not improve and her nervousness and irritation might cause a recurrence of the cancer. Petitioner continued to maintain his children in boarding schools after the taxable year here involved until up to the end of 5 years following the operation of December 10, 1943, petitioner having been advised that if there was no recurrence of the cancer during that time his wife could be considered as having recovered from the cancer.

During the taxable year petitioner's income was between $ 5,000 and $ 6,000. Petitioner's two children have not attended private school but have lived at home and attended public school since a period beginning 5 years after the operation of December 10, 1943. Petitioner's purpose in sending the children to boarding school during the year 1946 was to alleviate his wife's pain and suffering in caring for the children by reason of her inability to speak above a whisper and to prevent a recurrence of the cancer which was responsible for the condition of her voice. He also thought it would be good for the children to be away from their mother as much as possible while she was unable to speak to them above a whisper.

Petitioner's wife 1951 U.S. Tax Ct. LEXIS 117">*121 was employed part of her time in 1946 as a typist and stenographer. On account of the impairment which existed in her voice she found it difficult to hold a position and was only able to do part-time work. At the time of the hearing of this proceeding in 1951, she had recovered the use of her voice and seems to have entirely recovered from her throat cancer.

OPINION.

The sole question presented for our determination in this proceeding is whether expenses in the amount of $ 1,456.50 incurred by the petitioner in the year 1946 for maintaining his two minor children in certain day schools and boarding schools are deductible as medical expenses under section 23 (x) of the Internal Revenue 17 T.C. 130">*133 Code. The applicable statutes are printed in the margin. ¹1951 U.S. Tax Ct. LEXIS 117">*122 Regulations 111, section 29.23 (x)-1, reads in pertinent part as printed in the margin. ²

Section 24 (a) (1) of the Code prohibits the deduction of personal, living, or family expenses, except1951 U.S. Tax Ct. LEXIS 117">*123 extraordinary medical expenses which are deductible under section 23 (x). A taxpayer seeking a deduction must show that he comes within the terms of the statute relied upon. New Colonial Ice Co. v. Helvering, 292 U.S. 435">292 U.S. 435. Thus, it is clear that petitioner must prove that the payments in question are within the scope of the statutory term, "medical care." Do the facts in the instant case bring the $ 1,456.50 which petitioner seeks to deduct as medical expenses within the scope of expenditures for "medical care" as defined in the applicable statute and Treasury regulations? We do not think they do. There can be no doubt but that the facts show that petitioner in the year 1946, acting on the advice of a competent physician, sent his children to a private day school the first half of the year and to a boarding school the latter half of the year so that his ailing wife might be relieved of the pain and irritation of excessive use of her voice. It was his thought that this action would aid his wife in the recovery of her voice and would help in avoiding the possibility 17 T.C. 130">*134 of a recurrence of the cancer for which she had been operated upon in1951 U.S. Tax Ct. LEXIS 117">*124 1943.

Petitioner testified that he was particularly concerned about the medical advice which he had received to the effect that a recurrence of the cancer within a 5-year period would prove fatal to his wife and he testified that he was prepared to incur any expense within his financial ability to avoid this tragedy. We have no reason to doubt the good faith and truthfulness of petitioner's testimony in this respect and certainly his devotion and consideration for his wife were altogether admirable. But do the circumstances under which the amounts expended were incurred bring these expenses within the term "medical care" as defined by the statute and applicable Treasury regulations? We have already stated we do not think they do.

Both parties discuss in their briefs the case of Edward A. Havey, 12 T.C. 409, which was decided against the taxpayer. The facts in that case were altogether different from the facts in the instant case but we did enter into a comprehensive discussion of the applicable statute and regulations and much of the discussion is pertinent here. In the Havey case, among other things, we said:

In approaching this question it1951 U.S. Tax Ct. LEXIS 117">*125 is necessary to have in mind the basic concept of section 24 (a) (1) of the code that personal, living, and family expenses are not deductible. Thus, many expenses, such as the cost of vacations, though undoubtedly highly and directly beneficial to the general health, or athletic club expenses by means of which an individual keeps physically fit, are not deductible because they fall within the category of personal or living expenses. To be deductible as medical expense, there must be a direct or proximate relation between the expense and the diagnosis, cure, mitigation, treatment, or prevention of disease or the expense must have been incurred for the purpose of affecting some structure or function of the body.

Both parties also cite and comment upon the case of L. Keever Stringham, 12 T.C. 580, affd. per curiam 183 F.2d 579. In the Stringham case, the taxpayer's 5-year-old daughter, who had experienced various respiratory ailments throughout her infancy, early in November 1944, suffered an attack of bronchitis, bordering on pneumonia. The taxpayer immediately sent his daughter, accompanied by her mother, to Arizona1951 U.S. Tax Ct. LEXIS 117">*126 where the child was enrolled in a private boarding school. One month later the mother returned home, leaving the child at the school where she remained until the close of school the following May. The Court held that the expense incurred in connection with the transportation to, and the maintenance of taxpayer's infant daughter at, a boarding school in Arizona, exclusive of expenses attributable to her education was deductible as expense for "medical care" under section 23 (x) of the Code.

The facts in the Stringham case are distinguishable from those present in the instant case in that in the Stringham case the expenses incurred in sending the taxpayer's child to boarding school in Arizona17 T.C. 130">*135 were incurred because of the child's own ill health. This is not true in the instant case. The testimony is to the effect that petitioner's two children were both in excellent health. In fact it was their youthful exuberance, coupled with their early age and lack of understanding of their mother's condition, which made it so difficult for the mother to care for them under the handicap of her lack of voice and nervousness.

We are convinced from the evidence that the sending1951 U.S. Tax Ct. LEXIS 117">*127 of the children to day school and boarding school in 1946 was good for their welfare and it was also helpful in promoting the recovery of the health of Mrs. Ochs. However, we are unable to find, for reasons already stated, that the $ 1,456.50 expenditure which the petitioner incurred in 1946 in sending the two children to school is deductible as expenses for medical care under the provisions of section 23 (x), I. R. C., and the applicable Treasury regulations. We so hold.

Decision will be entered for the respondent.