52 T.C. 521">*521 The Commissioner determined a deficiency of $ 888.57 in petitioners' income tax for the taxable year 1964.

The issues for decision are as follows:

(1) Whether the petitioners are entitled to deduct as a medical expense the cost of meals, lodging, and some other incidental living expenses incurred by petitioner, Doris Rose, and her daughter while away for home.

(2) Whether the petitioners are entitled to deduct as a medical expense the cost of a trip1969 U.S. Tax Ct. LEXIS 107">*109 taken by petitioner Robert M. Rose to Destin, Fla., where he stayed with his wife and daughter.

(3) Whether the petitioners are entitled to deduct as a medical expense in 1964 certain expenses which were not incurred until 1965.

52 T.C. 521">*522 (4) In the event that we conclude that any of the above expenses are legally deductible, it will be necessary to determine the amount of the deductions.

A computation under Rule 50 will be necessary due to consessions made by the petitioners and the respondent.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found. The stipulation and exhibits thereto are incorporated herein by this reference.

The petitioners, Robert M. Rose, M.D., and Doris D. Rose, are husband and wife, who were legal residents of New Orleans, La., at the time they filed their petition in this proceeding. They filed their joint Federal income tax return for the calendar year 1964 with the district director of internal revenue at New Orleans, La.

The petitioners have two children, Suzanne and Conrad, who in 1964 were 10 and 15 years of age, respectively. Although both children have had occasional attacks of asthma since infancy, only Suzanne developed a severe1969 U.S. Tax Ct. LEXIS 107">*110 respiratory disorder requiring extensive medical attention. Suzanne was treated for most of her asthmatic espisodes until June 18, 1964, by Jack E. Strange, M.D., a pediatrician in New Orleans. It has been stipulated that Strange's records indicate the following history of medical treatment regarding Suzanne's respiratory disorder:

3/1/55 (9 months of age)

A mild attack of asthma and red throat which responded to penicillin. This was not true asthma but is what is now correctly termed acute tracheobronchitis.

6/17/55

A similar illness relieved by penicillin.

1956 and 1957

No wheezing.

3/15/58

Wheezing for three nights with an upper respiratory infection.

8/17/59

Attack of wheezing with an upper respiratory infection.

1960, 1961 and 1962

No wheezing.

All of the above attacks of wheezing were not considered of allergic origin, and none were severe.

4/25/63

Suzanne had a fairly severe attack of asthma.

8/13/63

Suzanne had a brief attack of asthma or wheezing.

52 T.C. 521">*523 6/18/64

Suzanne has had two severe attacks of asthma since May 1964. Choked and held breath today. Referred to Dr. Vincent Derbes today.

After the two severe attacks1969 U.S. Tax Ct. LEXIS 107">*111 mentioned in the medical report for June 18, 1964, Suzanne began to have difficulty breathing during the day followed by coughing and bronchial spasms at night. Medication provided little relief. On July 14, 1964, she had a severe asthmatic attack which resulted in her admission to the Southern Baptist Hospital in New Orleans on July 15, 1964. Her condition was diagnosed as one of severe bronchial asthma. Suzanne improved with medication and was discharged from the hospital on July 19, 1964. At home her condition rapidly deteriorated. She suffered another severe attack and was readmitted to the hospital on July 21, 1964, and after her condition improved again she was discharged on August 1, 1964. Suzanne was admitted to the hospital a third time on August 3, 1964, where she stayed until she had shown sufficient improvement to be formally discharged on August 23, 1964. ¹ Suzanne was not hospitalized again during the remainder of 1964.

1969 U.S. Tax Ct. LEXIS 107">*112 During the course of her hospitalization, Suzanne was given a series of sensitivity tests which revealed that she was allergic to house dust. In addition, laboratory testing of blood samples disclosed an extremely high degree of allergic sensitivity during periods of asthmatic attack. Considering this allergy to be a likely cause of Suzanne's respiratory difficulty, her doctors began a program of desensitizing injections for the purpose of immunizing her from the offending allergens, and advised her parents, petitioners herein, to keep Suzanne's room at their home in New Orleans as free from house dust as possible. To this end Robert washed and repainted the walls of her room, and removed the window draperies and much of the furniture. These items were removed not only because they collected dust, but because house dust is known to be produced by the deterioration of fabric. Also, a new vinyl flooring was laid down over the old flooring which had cracks which could act as a haven for dust particles.

In spite of Robert's efforts Suzanne's condition did not improve when she stayed at home. It was felt that the desensitizing program would not be effective, if at all, for a long1969 U.S. Tax Ct. LEXIS 107">*113 time, so as a last resort her physicians advised that she be taken to Destin, Fla., on the Gulf Coast, for a change of climate. Climatotherapy was the only method of treatment which had not been tried.

Robert and his family were familiar with Destin, for they had vacationed there every summer from 1959 through 1962. Each summer they stayed at the "Riviera on the Gulf" motel. In 1963 the family did not go to Destin.

52 T.C. 521">*524 After Suzanne was discharged from the hospital on August 23, 1964, she stayed at her parents' house in New Orleans for 5 days. On August 28, 1964, she traveled by automobile with her mother, Doris, to Destin. Robert joined them there on September 3, 1964. It does not appear that his presence was necessary for Suzanne's medical care. They stayed at the same motel as in previous years. The motel was located on the beach, and Suzanne's room was open to the sunlight and sea breezes. It was possible to keep this room relatively free from dust since there were only a few articles of furniture, most of which were upholstered with a plastic material. Allergenic pillow and mattress covers similar to those in Suzanne's room at home were used in her motel room. 1969 U.S. Tax Ct. LEXIS 107">*114 The room did not have any other distinguishing features which would have been beneficial to Suzanne's condition.

While in Destin, and throughout the remainder of the calendar year 1964, it was necessary for Doris to perform certain duties which might ordinarily be performed by a nurse. Her primary responsibility in this regard was to give Suzanne intramuscular injections of various medicines by syringe. It is relatively easy to give intramuscular injections, and the requisite techniques can be learned in a few minutes. This task was particularly easy for Doris because Robert had taught her to give him injections many years previous to 1964. Doris also aided Suzanne in the operation of her nebulizer, a machine widely used by asthmatics which produces a fine mist for the purpose of inhalation. When Suzanne was outside of her room, she used a pocket-size nebulizer.

Although Suzanne's health improved while she was in Destin, Robert decided that she should return to New Orleans on September 8, 1964, in order that she could begin the fall term of school. He felt that it would be imprudent for Suzanne to stay at their family home due to the existence of house dust generated by old1969 U.S. Tax Ct. LEXIS 107">*115 furniture. Robert did not wish to refurnish his house, nor did he wish to break up his family by sending Suzanne and Doris away to a more benign climate. After consulting with the doctor who had treated Suzanne during her period of hospitalization, it was decided to rent an efficiency apartment for Suzanne and Doris in the Bristow Towers, a modern, high-rise apartment building owned and administered by the Southern Baptist Hospital. The building is used for the housing of hospital personnel and is adjacent to the hospital.

The apartment in the Bristow Towers was completely equipped with relatively new, standard furnishings and draperies. The filtration and air-conditioning system of the apartment was not unlike that of any typical high-rise apartment building. The apartment was chosen because it was on a high floor above the ground and it was believed that there would be less house dust than that which existed at the family home; also its location provided ready access to the hospital, in 52 T.C. 521">*525 case Suzanne should have a severe asthmatic attack. The apartment did not have any other distinguishing features relating to Suzanne's medical care. Suzanne and her mother lived 1969 U.S. Tax Ct. LEXIS 107">*116 in the apartment until December 29, 1964. During this time Suzanne attended school and was absent only 4 days. Suzanne regularly attended gym classes at school, but she was only occasionally capable of taking part in a few of the less rigorous physical exercises.

Suzanne was treated twice weekly as an outpatient by Stanley Cohen, M.D., an allergy specialist, from October 16, 1964, through December 23, 1964. Desensitizing injections of house-dust vaccine were given each visit. In the apartment, Doris continued to give Suzanne inhalation treatments and injections whenever they were necessary. In spite of this treatment Suzanne continued to have asthmatic attacks but none of them were severe enough to require hospitalization. On December 22, 1964, a desensitizing injection was given to Suzanne which caused a severe reaction resulting in hemorrhagic spots all over her body and a large area of hemorrhage at the place where the injection had been given. As a result of this reaction, Cohen determined on December 23, 1964, that Suzanne should not receive any further injections.

Following the advice of Suzanne's doctors, Robert decided that it was necessary to send Suzanne and Doris 1969 U.S. Tax Ct. LEXIS 107">*117 to Arizona. On December 29, 1964, Suzanne and her mother flew to Phoenix, Ariz., where they stayed in a motel for the remaining three nights of 1964. Subsequently, in 1965, Suzanne attended a clinic for asthmatics in Tucson, Ariz., on an outpatient basis while living with her mother in a motel.

During 1964 Doris received all of the money which she expended from her husband, Robert.

In their joint income tax return for the calendar year 1964, petitioners reported medical and dental expenses of $ 3,708.62, which were itemized as follows:

52 T.C. 521">*526 In the notice of deficiency the respondent allowed the deduction of $ 851.30 for Suzanne's hospitalization, but determined that the expenses allegedly incurred while staying at Destin, Fla., and those incurred while staying at the Bristow Towers apartment in New1969 U.S. Tax Ct. LEXIS 107">*118 Orleans, La., did not constitute medical expenses. Included in the amounts disallowed by respondent for the Destin trip was the cost of Robert's round-trip transportation. Respondent allowed a deduction for medical expenses of $ 30 for transportation of Suzanne and her mother by automobile to and from Destin, Fla., and $ 152.46 for their airplane fare to Phoneix, Ariz. Respondent determined that $ 700 of the $ 852.46 allegedly expended on the trip to Arizona did not constitute a medical expense. Although Robert gave his wife, Doris, two checks totaling $ 700 for the Arizona trip in December 1964, most, if not all of this amount was not actually expended by Doris until 1965, a year not in issue in this proceeding.

Respondent allowed the medical expense deductions representing the cost of eyeglasses for Robert and his son, but disallowed $ 10 of the $ 130 claimed as a dental expense. Petitioner did not contest the latter disallowance.

OPINION

The primary question presented for our decision is whether petitioners are entitled to deduct the living expenses of Suzanne and her mother, Doris, while staying at a motel in Destin, Fla., at their rented apartment in New Orleans, La., and1969 U.S. Tax Ct. LEXIS 107">*119 at a motel in Phoenix, Ariz., as expenses paid for medical care within the meaning of section 213 of the Internal Revenue Code of 1954. ²1969 U.S. Tax Ct. LEXIS 107">*120 In addition to the expenses incurred during 1964 in Phoenix, Ariz., petitioners are also claiming a deduction for living expenses incurred in Arizona during 1965, a year not in issue in this case. Also in issue is the deductibility as a medical expense of the transportation and living expenses incurred by the petitioner, Robert, on his trip to Destin, Fla. Respondent contends that all such expenses constitute nondeductible personal, living, or family expenses under section 262, ³ and may not be allowed as medical expenses.

52 T.C. 521">*527 By way of introduction, it should be noted that section 23(x) of the Internal Revenue Code of 1939, the predecessor of section 213, has been construed by this Court as allowing a deduction for both traveling expenses and amounts spent for food and lodging incidental to a trip necessary and prescribed for medical reasons. L. Keever Stringham, 12 T.C. 580">12 T.C. 580 (1949), affirmed per curiam 183 F.2d 579 (C.A. 6 1950); Stanley D. Winderman, 32 T.C. 1197">32 T.C. 1197 (1959). But in Commissioner v. Bilder, 369 U.S. 499">369 U.S. 499 (1962), reversing 289 F.2d 291 (C.A. 3, 1961) and 33 T.C. 155">33 T.C. 155 (1959), the Supreme Court held that Congress by the enactment of section 213 specifically excluded the deductibility of meals and lodging at the prescribed location as medical expenses unless incurred as part of1969 U.S. Tax Ct. LEXIS 107">*121 a hospital bill. Accord, Max Carasso, 34 T.C. 1139">34 T.C. 1139 (1960), affd. 292 F.2d 367 (C.A. 2, 1961), certiorari denied 369 U.S. 874">369 U.S. 874; Martin J. Lichterman, 37 T.C. 586">37 T.C. 586 (1961); and Leo R. Cohn, 38 T.C. 387">38 T.C. 387, 38 T.C. 387">391 (1962).

The factual situation in Bilder is similar to that of the instant case in that the taxpayer therein was ordered by his physician to change his physical environment as part of a regimen of medical treatment. In finding that Bilder's lodging expense at the prescribed location was not a deductible medical expense, the Supreme Court based its conclusion on the following excerpt from the committee reports regarding the enactment of section 213:

Subsection (e) defines medical care to mean amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of diseases, or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance), or for transportation primarily for and essential to medical care. The deduction permitted for "transportation primarily for and 1969 U.S. Tax Ct. LEXIS 107">*122 essential to medical care" clarifies existing law in that it specifically excludes deduction of any meals and lodging while away from home receiving medical treatment. For example, if a doctor prescribes that a patient must go to Florida in order to alleviate specific chronic ailments and to escape unfavorable climatic conditions which have proven injurious to the health of the taxpayer, and the travel is prescribed for reasons other than the general improvement of a patient's health, the cost of the patient's transportation to Florida would be deductible but not his living expenses while there. However, if a doctor prescribed an appendectomy and the taxpayer chose to go to Florida for the operation not even his transportation costs would be deductible. The subsection is not intended otherwise to change the existing definitions of medical care, to deny the cost of ordinary ambulance transportation nor to deny the cost of food or lodging provided as part of a hospital bill. H.R. Rep. No. 1337, 83d Cong., 2d Sess. A60 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess. 219-220 (1954). (Emphasis supplied.) ⁴ [Footnote omitted.] 4

1969 U.S. Tax Ct. LEXIS 107">*123 As noted by the Supreme Court in Bilder, the substance of the rule set forth in both legislative reports has been embodied in the regulations 52 T.C. 521">*528 interpreting section 213, pertinent parts of which are set forth in the margin. ⁵

1969 U.S. Tax Ct. LEXIS 107">*124 The evidence of record establishes beyond question that Suzanne was suffering from a "disease" and was a very sick girl indeed in 1964. We are also convinced that her trip to Destin in August of that year with Doris, her move into the apartment with her mother upon her return to New Orleans, and their subsequent trip to Arizona in December were all dictated by considerations of her health and were in no sense pleasure trips or vacations. We are satisfied that all of these trips were made for medical reasons and not for personal ones, and that Doris accompanied Suzanne and stayed with her as an indispensable family member, rendering vital and necessary care and attention to her 10-year old daughter. All of this has indeed been recognized by respondent in his deficiency notice which has allowed the transportation expenses for both mother and daughter but disallowed the additional food and lodging expenses claimed. Respondent relies heavily 52 T.C. 521">*529 on his regulations set forth hereinabove, and we have already previously held that these regulations set forth reasonable rules to be applied in effectuating the statute. 37 T.C. 586">Martin J. Lichterman, supra at 596.1969 U.S. Tax Ct. LEXIS 107">*125

The petitioners argue that Congress did not intend by the enactment of section 213 to preclude the deductibility of the additional expenses of meals and lodging which would not have been incurred but for the occasion of the illness. In this regard petitioners state that it was necessary for Robert to maintain the family residence in New Orleans for himself and his son, Conrad, and that the expenses incurred by Doris and Suzanne while living away from that residence resulted in an overall increase in the family living expenses. We disagree with petitioners' interpretation of the statute.

Since the instances of increased or duplicated living costs would appear to be rather high among families having members who are required to take trips for medical reasons, Congress would undoubtedly have made known its intention to make an exception in the case of such duplicated expenses, had it intended to do so. Instead, Congress only enunciated the broad rule that the expenses of meals and lodging at a prescribed location do not constitute medical expenses unless incurred as part of a hospital bill. Furthermore, petitioners' contention is negated by 369 U.S. 499">Commissioner v. Bilder, supra,1969 U.S. Tax Ct. LEXIS 107">*126 wherein the Supreme Court denied the deduction of the taxpayer's living expenses even though it had been found that these expenses would not have been incurred but for the advice of his physician. We had previously denied deduction for meals and hotel lodging expenses in 34 T.C. 1139">Max Carasso, supra, under similar factual circumstances.

The pertinent regulations upon which respondent relies recognize that the cost of meals and lodging for a patient in a hospital constitutes a cost of medical care, and that under some circumstances cost of meals and lodging furnished in an institution other than a hospital may constitute cost of medical care. They provide, however, that a private establishment, in order to be considered as a qualifying institution, must be regularly engaged in providing types of care or services referred to in the regulations. The living expenses in issue here were not incurred in either a hospital or private institution within the meaning of these regulations.

Petitioners argue that Congress did not intend to allow a deduction for the expenses of meals and lodging only when paid as part of a hospital bill, and that such expenses would be1969 U.S. Tax Ct. LEXIS 107">*127 similarly deductible when incurred in connection with accommodations which duplicate a 52 T.C. 521">*530 hospital environment. Petitioners further urge that the expenses in issue here fall within the latter category due to their efforts to change Suzanne's climate and environment and to minimize the quantity of house dust. They urge that these efforts and services of Suzanne's mother of the type sometimes rendered by a professional nurse, made the accommodations in motels and the apartment similar to institutional care for medical purposes so that rent, food, and other living expenses qualify as deductible "medical" expenses. However, the record does not support the conclusion that the petitioners duplicated a hospital environment either in the motels at Destin and Phoenix or at the efficiency apartment in New Orleans.

Except for differences in climate the record does not disclose that the motel rooms in question were any more hospital-like than motel rooms anywhere else. The equipment was portable and minimal and no different from that used by Suzanne at home, it consisting merely of a nebulizer to create medicated vapor spray when necessary, and allergenic pillows, mattress covers, 1969 U.S. Tax Ct. LEXIS 107">*128 et cetera. Certainly the record fails to disclose that any of the accommodations in question created a hospital environment; principally it was different from home only in the sense that a change of climate was accomplished by the trips to Destin and Phoenix and house dust was at least to some extent minimized by the locational changes, sparse furnishings and the high-story location of the apartment. Suzanne was not confined to bed or immobilized at any of these locations; after the 10-day trip to the beach in Florida she returned to New Orleans and entered school which she attended regularly throughout the rest of 1964, missing only 4 days in that 3 1/2-month period. It does not appear of record that the situation was any different after she went to the motel in Phoenix for the last 3 days of the year. Petitioners have not established that the food, lodging, and other living expenses in question qualify as medical expenses in any sense.

Petitioners further point out that the Bristow Towers was owned by the Southern Baptist Hospital, and that the hospital was immediately adjacent to the Bristow Towers. These factors do not dictate our determination here. See Cohn v. United States, 240 F. Supp. 786">240 F. Supp. 786 (N.D. Ind. 1965).1969 U.S. Tax Ct. LEXIS 107">*129 It is the nature of the services rendered as medical care, its therapeutic nature to the individual, that determines whether or not it qualifies for deduction under section 213, not the location of the facility. See C. Fink Fischer, 50 T.C. 164">50 T.C. 164 (1968).

52 T.C. 521">*531 We do not find it necessary to reach the question of whether it might be possible for an individual to find or create living quarters completely unrelated to any established institution providing medical care, but which substantially duplicate hospitalization, such that all or a portion of the living expenses incurred therein might lose their character as nondeductible personal expenses. We hold and conclude on the record here that the living expenses incurred on behalf of Suzanne during 1964 while she was staying at the motel in Destin, Fla., at the Bristow Towers apartment in New Orleans, La., and at a motel in Phoenix, Ariz., represented the precise type of personal expenses the deductibility of which Congress sought to preclude by the enactment of section 213, and as such are nondeductible personal living expenses under section 262.

Petitioners also seek to deduct Doris' living expenses1969 U.S. Tax Ct. LEXIS 107">*130 under section 213 which were incurred while she was staying with Suzanne at the prescribed locations. They assert that Doris' presence was indispensable because of Suzanne's age and the need for certain services which Doris performed as a quasi-nurse. We have disallowed the deduction of such expenses under similar circumstances. 34 T.C. 1139">Max Carasso, supra;38 T.C. 387">Leo R. Cohn, supra.Although their position both at trial and on brief is not clear, petitioners may have been arguing that the payments made by Robert to his wife, Doris, for her living expenses constituted compensation for nursing services. We hold that these payments were primarily for the purpose of providing support for his wife, and as such do not constitute a medical expense. That Doris provided devoted and tender care and attention to Suzanne is clear, but she was not being paid for those maternal services by her husband.

Petitioners also seek a deduction as a medical expense of the transportation and living expenses incurred by Robert on his trip to Destin, Fla., where he stayed with Suzanne and Doris at the "Riviera on the Gulf" motel. Suzanne and Doris had arrived1969 U.S. Tax Ct. LEXIS 107">*131 in Destin several days before Robert. There is no evidence in the record which would indicate that Robert was advised by Suzanne's physicians to make the trip, or that his presence was in any way necessary to the proper medical care of his daughter. Therefore, his transportation to and from Destin was not "primarily for and essential to medical care" within the meaning of section 213(e)(1)(B). Rev. Rul. 58-533, 1958-2 C.B. 108. It follows that the expense incurred by Robert for his transportation constitutes a nondeductible personal expense under section 262. The expenses attributable to his meals and lodging at Destin would be 52 T.C. 521">*532 considered nondeductible personal expenses regardless of whether or not his trip was essential to Suzanne's medical care. 34 T.C. 1139">Max Carasso, supra;38 T.C. 387">Leo R. Cohn, supra.

On their income tax return for the calendar year 1964 petitioners deducted $ 852.46 for a trip taken by Doris and Suzanne to Arizona as an amount paid during the taxable year for medical care. Respondent allowed a deduction for transportation in the amount of $ 152.46, but disallowed the1969 U.S. Tax Ct. LEXIS 107">*132 remaining $ 700. We have already held that any amounts actually expended by Suzanne and Doris for living expenses incurred in Arizona during 1964 were nondeductible personal expenses. However, petitioners also seek to deduct a portion of the $ 700 which, by their own admission, constitutes expenses for meals and lodging attributable to 1965, a year not in issue here. They argue that the $ 700 which Robert gave to Doris on December 28, 1964, for the Arizona trip constituted an advance payment for medical care.

The intent of section 213 appears to be clear. It is to allow a deduction for expenses incurred and paid in the taxable year for medical care. It has long been held that expenses are not incurred in the taxable year unless a legal obligation to pay them has arisen. Bauer Bros. Co. v. Commissioner, 46 F.2d 874, 875 (C.A. 6, 1931), affirming 9 B.T.A. 392">9 B.T.A. 392 (1927), certiorari denied 283 U.S. 850">283 U.S. 850 (1931). This Court has held that advance payments for medical services to be rendered in the following year do not constitute a payment in the taxable year within the meaning of section 23(x), I.R.C. 1969 U.S. Tax Ct. LEXIS 107">*133 1939, the predecessor of section 213. Robert S. Bassett, 26 T.C. 619">26 T.C. 619 (1956). Since the relevant provisions of the statute remain unchanged, we hold that the expenses attributable to 1965 are not deductible medical expenses in 1964.

Decision will be entered under Rule 50.