54 T.C. 216">*216 The Commissioner determined a deficiency in the Federal income tax of petitioners' for taxable year 1966 in the amount of $ 309.31. 1970 U.S. Tax Ct. LEXIS 219">*220 The only issue for decision is whether petitioners are entitled to a deduction for law school expenses of Burke Bradley as ordinary and necessary business expenses under section 162(a), I.R.C. 1954. ¹

FINDINGS OF FACT

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

The petitioners, Burke W. and Karen E. Bradley, Jr., husband and wife, resided in San Mateo, Calif., at the time the petition herein was filed. Hereinafter, the designation petitioner will refer solely to Burke Bradley in that the issue herein involves expenses incurred by him alone. Petitioners filed their 1966 joint Federal income tax return with the district director of internal revenue at San Francisco, Calif.

In January 1964, petitioner received his bachelor of arts degree in social sciences from San Jose State College. He took the law school 54 T.C. 216">*217 admission test in1970 U.S. Tax Ct. LEXIS 219">*221 November 1964 which is a prerequisite for admission to almost every law school in the United States.

By letter dated February 4, 1965, petitioner inquired as to the possibility for admission to the University of San Francisco School of Law with the intention of beginning legal studies in September 1965. Subsequently, on May 3, 1965, petitioner made formal application for admission on a full-time day school basis. However, due to the lateness of his application, petitioner was advised that the only openings for admission at that time were in the evening division. Petitioner, by letter dated May 11, 1965, regretted the fact that he could not attend on a full-time day basis but indicated his desire to be considered for the evening division. Petitioner began his legal studies in September 1965, and graduated from the University of San Francisco School of Law in June 1969 with a juris doctor degree.

In June 1965, petitioner completed his course work for a master of arts degree from San Jose State College. At this time he was granted general secondary teaching credentials and thereby was qualified to teach in all California junior and senior high schools. He received his degree in1970 U.S. Tax Ct. LEXIS 219">*222 1967 upon passing his oral examinations. Petitioner thereby became qualified to teach in the California Junior College System.

In December 1965, petitioner applied for and obtained a position at Williamson High School, Fremont, Calif. This marked petitioner's entry into the teaching profession. Petitioner has continued at Williamson until the present time as a teacher-adviser. Williamson High School is Fremont's Continuation High School required by law for those students who are unable to adjust to the regular high school environment. Petitioner teaches a wide variety of subjects at Williamson including driver education and safety, social studies and government, juvenile law and the juvenile court system, alcohol and alcoholism, drug abuse and narcotics addiction, natural science, and health education. In his adviser's role, petitioner holds parent conferences, conducts meetings with probation officers and psychologists, goes on home visits, and engages in general counseling. The student body at Williamson is composed primarily of students who have been suspended from their regular high schools for a total of 11 days. Between one-fourth and one-third of the students have been1970 U.S. Tax Ct. LEXIS 219">*223 declared delinquents by the juvenile courts and many others have had difficulties with the authorities.

While petitioner was in attendance at law school his course selection and curriculum was dictated almost entirely by the school's graduation requirements. Within 3 months of commencing his legal studies, petitioner registered with the committee of bar examiners of the bar of California as a law student. Such registration is a prerequisite to sitting for the California bar examination. On his registration form petitioner indicated that he intended to claim credit for his law school 54 T.C. 216">*218 studies as part of the educational requirements to take the California bar examination.

In April 1969, petitioner applied to the committee of bar examiners of the State of California for admission to practice law. Petitioner took the California bar exam in August 1969 and subsequent to the trial herein passed said examination.

For the taxable year 1966, petitioner claimed as a deduction the amount of $ 2,057.50 as an education expense, representing the amount petitioner expended for law school. Such amount consists of the following items:

1970 U.S. Tax Ct. LEXIS 219">*224 The amount representing tuition was claimed in the petition herein, the other amounts were claimed on petitioners' tax return.

The Commissioner disallowed the claimed deduction stating that "it has not been established that such education maintained or improved skills required by you in your employment as a high school teacher."

OPINION

The sole issue confronting us is whether or not petitioner can deduct the cost of attending law school during 1966 under section 162(a). To be able to take such deduction, petitioner must show these expenses to be ordinary and necessary business expenses. Since the Code does not directly deal with education expenses, the regulations take on an added significance. Before their amendment in 1967 the regulations read in pertinent part:

Sec. 1.162-5. Expenses for education.

(a) Expenditures made by a taxpayer for his education are deductible if they are for education (including research activities) undertaken primarily for the purpose of:

(1) Maintaining or improving skills required by the taxpayer in his employment or other trade or business, or

(2) Meeting the express requirements of a taxpayer's employer, or the requirements of applicable law or1970 U.S. Tax Ct. LEXIS 219">*225 regulations, imposed as a condition to the retention by the taxpayer of his salary, status or employment.

Whether or not education is of the type referred to in subparagraph (1) of this paragraph shall be determined upon the basis of all the facts of each case. If it is customary for other established members of the taxpayer's trade or business to undertake such education, the taxpayer will ordinarily be considered to have undertaken this education for the purposes described in subparagraph (1) of this paragraph. * * *

54 T.C. 216">*219 As of May 1, 1967, the above regulations were amended to read as follows:

Sec. 1.162-5. Expenses for education.

(a) General rule. Expenditures made by an individual of education (including research undertaken as part of his educational program) which are not expenditures of a type described in paragraph (b)(2) or (3) of this section are deductible as ordinary and necessary business expenses (even though the education may lead to a degree) if the education --

(1) Maintains or improves skills required by the individual in his employment or other trade or business, or

(2) Meets the express requirements of the individual's employer, or the requirements1970 U.S. Tax Ct. LEXIS 219">*226 of applicable law or regulations, imposed as a condition to the retention by the individual of an established employment relationship, status, or rate of compensation.

(b) Nondeductible educational expenditures -- (1) In general. Educational expenditures described in subparagraphs (2) and (3) of this paragraph are personal expenditures or constitute an inseparable aggregate of personal and capital expenditures and, therefore, are not deductible as ordinary and necessary business expenses even though the education may maintain or improve skills required by the individual in his employment or other trade or business or may meet the express requirements of the individual's employer or of applicable law or regulations.

* * * *

(3) Qualification for new trade or business. (i) The second category of nondeductible educational expenses within the scope of subparagraph (1) of this paragraph are expenditures made by an individual for education which is part of a program of study being pursued by him which will lead to qualifying him in a new trade or business. In the case of an employee, a change of duties does not constitute a new trade or business if the new duties involve 1970 U.S. Tax Ct. LEXIS 219">*227 the same general type of work as is involved in the individual's present employment. For this purpose, all teaching and related duties shall be considered to involve the same general type of work. The following are examples of changes in duties which do not constitute new trades or businesses:

(a) Elementary to secondary school classroom teacher.

(b) Classroom teacher in one subject (such as mathematics) to classroom teacher in another subject (such as science).

(c) Classroom teacher to guidance counselor.

(d) Classroom teacher to principal.

Petitioner relies alternatively on both the old and new regulations. We have held that this practice is permissible. Ronald F. Weiszmann, 52 T.C. 1106">52 T.C. 1106 (1969).

Turning first to the new regulations. They establish an objective test as to the deductibility of education expenses. Under subsection (b)(3) the Commissioner argues, petitioner may not claim the deduction because his attendance at law school was "part of a program of study being pursued by him which will lead to qualifying him in a new trade or business."

Petitioner seizes upon this same subsection and argues that he may take the deduction. This is so, 1970 U.S. Tax Ct. LEXIS 219">*228 he contends, because the language following 54 T.C. 216">*220 that quoted above, makes specific reference to teachers, considering all teaching and related duties to involve the same type of work. Petitioner says this shows a liberalization of the rules on the deductibility of education expenses for teachers, in that under the regulations a change of duties is not a new trade or business if the new duties involve the same general type of work as the old. This he says is a relaxation of the requirements for deductibility, in recognition of the fact that "all education which a teacher receives greatly expands his knowledge and * * * both maintains and improves his teaching skills."

While this Court is certainly in favor of the maintenance and improvement of our education system, we are still mindful of the fact that deductions are dependent on the express provisions of the Code. Petitioner is claiming these expenses as business expenses; therefore, they must be ordinary and necessary expenses of carrying on a trade or business, in this case the trade of a teacher. Petitioner must show a direct and proximate relationship between the education expenses and his employment. Kornhauser v. United States, 276 U.S. 145">276 U.S. 145, 276 U.S. 145">153 (1928);1970 U.S. Tax Ct. LEXIS 219">*229 James A. Carroll, 51 T.C. 213">51 T.C. 213 (1968), affd. 418 F.2d 91 (C.A. 7, 1969); and Robert Lee Henry, 36 T.C. 879">36 T.C. 879, 36 T.C. 879">884 (1961). This petitioner has failed to do. He has failed to show any connection, aside from the remote or incidental one of broadening his general understanding and competency, between his general legal education and the maintenance or improvement of the skills required by him as a teacher. See 51 T.C. 213">James A. Carroll, supra.

We fail to see the requisite relationship between the legal skills garnered while in law school and the teaching skills required of his employment to enable petitioner to say that his legal education was directly and proximately related to his job as a teacher.

The required connection is not established, petitioner's argument to the contrary notwithstanding, because some of his students had been in trouble with the authorities or that he sought to promote good citizenship on the part of his students. We think that petitioner could have obtained the necessary knowledge to instill good citizenship from available publications which were1970 U.S. Tax Ct. LEXIS 219">*230 offered at trial and which we have studied. True that the training one receives in law school theoretically equips the graduate with the tools necessary for the better solution of various legal problems. However, petitioner has not shown that his employment as a high school teacher required him to solve any legal problems.

The new regulations are interpretative, they do not change the overriding language of the Code. Under the old regulations, a general background knowledge of the law would not be sufficient to sustain a deduction. See 51 T.C. 213">James A. Carroll, supra. We do not believe that whatever, 54 T.C. 216">*221 if any, liberalization was intended in the new regulations as to teachers, can do away with a showing of a direct and proximate relationship between the education and the employment.

Turning to the old regulations, petitioner must establish that he undertook his legal education primarily to maintain or improve the skills required in his employment. This showing of intent is to be gathered from all the facts and circumstances, N. Kent Baker, 51 T.C. 243">51 T.C. 243, 51 T.C. 243">247 (1968).

The deduction will be allowed if the education1970 U.S. Tax Ct. LEXIS 219">*231 is undertaken primarily to maintain or improve the skills required in the employment. This we think necessitates an employment situation at the time the education is undertaken. When we look at petitioner at this critical time, he was not employed as a teacher. In fact he did not become so employed until 3 months after entering law school. Further, petitioner's initial application was for full-time day attendance and he "regretted" not being able to so attend. It thus seems incongruous that petitioner's primary purpose was to maintain or improve skills required in his employment, when in fact he had no employment at the time he decided to undertake a legal education.

We feel that petitioner undertook his legal education to fulfill his general educational desires. This is borne out by petitioner's continuous uninterrupted pursuit of formal education which shows "a continuing pattern of a person who was simply fulfilling his 'general educational aspirations or other personal purposes.' Sec. 1.162-5(b), Income Tax Regs." N. Kent Baker, 51 T.C. 243">51 T.C. 243, 51 T.C. 243">248.

Decision will be entered for the respondent.