55 T.C. 628">*628 The respondent has determined a deficiency in the petitioners' income tax for the calendar year 1967 in the amount of $ 116.62.

The issue presented for our decision is whether the petitioner-husband is entitled to deduct expenses incurred in traveling in his automobile 55 T.C. 628">*629 between his home and his place of employment. Involved are sections 162 and 262 of the 1954 Code.

FINDINGS OF FACT

Most of the facts in this case have been stipulated and are found accordingly. The stipulation of facts and exhibit attached thereto are incorporated herein by this reference.

During the taxable year in question, the petitioners, Robert A. Hitt and Marian E. Hitt, husband and wife, resided in Commack, N.Y., and Fort Lauderdale, Fla. At the time they filed the petition in this case, they resided in Fort Lauderdale.

1971 U.S. Tax Ct. LEXIS 203">*205 The petitioners filed their joint Federal income tax return for the taxable year 1967 with the director of the Internal Revenue Service Southeast Service Center in Chamblee, Ga.

Robert was employed throughout 1967 by United Airlines (United) as a flight officer.

At the beginning of 1967, Robert was stationed by United in New York, N.Y. During that time, he and his family resided in Commack. On September 29, 1967, United transferred Robert to Miami, Fla. Upon moving to Florida, Robert and his family resided in Fort Lauderdale.

To report for work while living in New York, Robert would travel to either Kennedy Airport or LaGuardia Airport in his own automobile from his home in Commack. To report for work while living in Florida, Robert would travel to Miami International Airport in his own automobile from his home in Fort Lauderdale. When it was necessary for Robert to fly out of West Palm Beach International Airport, he did not travel directly to that facility in his automobile; instead, he would drive to the Miami airport and then fly to West Palm Beach.

On each flight, Robert took along two pieces of luggage. One contained clothes and personal items, and the other, his "flight1971 U.S. Tax Ct. LEXIS 203">*206 bag," contained the following equipment which United required Robert to carry with him on each flight:

Airplane Flight Manual

Flight Operations Manual

Two flashlights (one two-cell and one one penlight)

Pliers

One 4-inch or 6-inch Crescent wrench

Screwdriver

Knife

Needlenose pliers (with side cutters)

Phillips screwdriver

55 T.C. 628">*634 Drennen, J., concurring: The Court has this day reviewed and approved the opinions in three cases involving the "commuter rule" and whether the carrying of bulky tools or equipment used in his business permits the deduction of all or a part of the taxpayer's expense incurred in driving his own automobile to and from his place of employment. In two of these cases, Robert A. Hitt and Donald W. Fausner, we had before us two airline pilots who incurred commuting expenses under very similar circumstances, both having to carry with them flight kit bags and suitcases, and we concluded that the expenses were deductible by one of them, Fausner, but not by the other, Hitt. In the third case, Harold Gilberg, the business of the taxpayer was different but the argument1971 U.S. Tax Ct. LEXIS 203">*218 was also made, in the alternative, that commuting expenses were deductible because taxpayer was required to carry with him from his home to the jobsite certain equipment used in his business. We denied the deduction in this case. I agree with the conclusions reached and the reasoning utilized in each of these cases, but would hope to clarify in this opinion how and why we reached these seemingly incompatible conclusions.

In both Hitt and Gilberg we affirmatively endorsed the "commuter rule," i.e., that the normal expenses incurred in traveling between one's home and place of business are nondeductible personal expenses. Consequently, as stated in Hitt, if the taxpayer would have driven his car to work in any event, whether because of the distances involved, the lack of other means of getting to his job, or simply because of his own choice, he may not deduct any of the expenses of traveling to and from work in his own car, even though he carries tools or equipment used in his business with him in the car. Stated another way in Gilberg, to be entitled to a deduction for any part of his commuting expenses the taxpayer must show that he would not have driven his car1971 U.S. Tax Ct. LEXIS 203">*219 to work "but for" the business necessity of carrying his tools or equipment. In both of those cases we found that the taxpayer would have driven his car to work in any event, and it was not shown that he incurred any additional expense by carrying his equipment with him, so we concluded that none of his traveling expenses were deductible.

However, although the Tax Court espoused the above rule with regard to commuting expenses, we allowed a deduction of part of the commuting expenses to Fausner. This was only because the Court of Appeals for the Second Circuit, to which appeal in the Fausner case would lie, adopted a different rule in Sullivan v. Commissioner, 368 F.2d 1007">368 F.2d 1007, it being that a taxpayer is entitled to deduct that portion of his reasonable driving expenses which is allocable to the transportation of tools or equipment even though the taxpayer would have used his car in any event to go to work had it not been necessary for him to transport his tools. Pursuant to the policy decision of the Tax Court 55 T.C. 628">*635 in Jack E. Golsen, 54 T.C. 742">54 T.C. 742, we must apply the rule approved by the controlling Second 1971 U.S. Tax Ct. LEXIS 203">*220 Circuit, where it is squarely in point, in deciding the Fausner case, even though it is contrary to the rule adopted by this Court. Applying the rule of the Second Circuit to the facts in the Fausner case we concluded that Fausner was entitled to deduct a portion of his commuting expenses. Hence, the seeming inconsistency between our conclusion in Fausner and our conclusion in Hitt on similar facts.

The rule adopted by this Court in Hitt and Gilberg does not, in my opinion, foreclose inquiry into whether, because of the type of work the taxpayer is engaged in, the distances involved, the temporary nature of the job, etc., the cost of travel to and from taxpayer's home and place of work is in reality an ordinary and necessary business expense rather than a personal expense of commuting. Nor does it necessarily preclude deduction of expenses incurred in connection with the use of his automobile after the taxpayer gets to his place of business. See, for example, the expense of Fausner's transportation between the two airports. It also leaves open the question of whether a taxpayer who would not have driven his car to work but for the necessity of transporting1971 U.S. Tax Ct. LEXIS 203">*221 his tools or equipment is entitled to deduct the entire cost of driving his car to and from work or only a reasonable portion thereof; and if the latter, the basis for making the allocation between nondeductible personal and deductible business expenses.

Sterrett, J., concurring: I concur in the result reached by the majority for the reason that the objects carried by the petitioner herein do not justify a holding that they were "too heavy or cumbersome to be carried in any practical manner" on public transportation. Hence, the use of an automobile was a purely voluntary decision and its expense must fall within the nondeductible commuting expense prohibition. However, were the facts contrariwise, in that the objects at issue were too bulky to be carried on public transportation, I would allow a deduction for the cost of carrying such items to work.

Hence, I wish to disassociate myself from the majority's holding that "if a taxpayer uses his automobile to commute to work in any and all events, he should not be permitted to deduct any of his traveling expenses since he incurred no expense whatever by reason of transporting the tools of his trade."

Simply put, the majority's view1971 U.S. Tax Ct. LEXIS 203">*222 can be summarized as holding that a business expense incurred simultaneously with a commuting expense ipso facto loses its deductible character. It would be just as logical to hold to the contrary; namely, that the commuting expense loses its 55 T.C. 628">*636 nondeductible character by reason of its association with the deductible expense incurred by one carrying the tools of his trade to work. Under this reasoning one end results in an out-of-pocket expenditure and the other end in none. But which end is up? A futile quest. An all-or-nothing approach ignores the realities of the situation and defies logic.

In the case where the individual uses his car to get to work because (1) he prefers to drive rather than take available public transportation and (2) he is burdened with certain accoutrement necessary to his work which is too heavy or cumbersome to take on public transportation, his car obviously serves a dual purpose. It transports both his "nondeductible body" and the deductible accoutrement to his place of employment. This being so, there is no need or justification to hold that either characteristic controls.

Consequently I would allow the cost attributable to carrying 1971 U.S. Tax Ct. LEXIS 203">*223 objects clearly necessary in an individual's employment and too cumbersome or awkward to carry on public transportation irrespective of whether said individual would have driven in any and all events. Commissioner v. Sullivan, 368 F.2d 1007">368 F.2d 1007 (C.A. 2, 1966); cf. Tyne v. Commissioner, 409 F.2d 485">409 F.2d 485 (C.A. 7, 1969).