63 T.C. 129">*130 The Commissioner determined deficiencies in petitioners' income tax in the amounts of $ 951.17, $ 612.23, $ 649.92, and $ 1,069 for the respective calendar years 1968 through 1971. Several issues were resolved by the parties prior to and during the trial. The only issues which remain to be decided are: (1) Whether petitioners, who were employees of the County and City of Los Angeles and who were cash basis taxpayers, must include in their gross income amounts withheld from their salary and contributed to retirement systems on their behalf, where participation in the systems is required by State law as a condition of employment; (2) whether certain educational expenses are deductible; and (3) whether petitioners' commuting expenses are deductible.

FINDINGS OF FACT

The parties have filed a stipulation and two supplemental stipulations of fact along with exhibits which are incorporated herein by this reference.

Petitioners are husband and wife. They filed joint Federal income tax returns for the calendar years 1968 through 1971, inclusive, with the district director of internal revenue at Los Angeles, Calif. During the taxable years and at the time they filed their1974 U.S. Tax Ct. LEXIS 28">*30 petition herein they resided in Sepulveda, Calif., a part of the city of Los Angeles. They reported their income according to the cash receipts and disbursements method of accounting.

Retirement contributions. -- During the years at issue Mr. Feistman was employed by the County of Los Angeles as a deputy probation officer, and Mrs. Feistman was employed as a teacher by the Los Angeles City School District. As a condition of their employment, both petitioners were required by law to participate in the retirement systems of their respective employers. As a result, certain amounts were withheld each year from their gross wages as employee contributions to their respective retirement funds. The amounts of the gross wages and retirement contributions for each petitioner in each of the taxable years are shown in the following table: 63 T.C. 129">*131

Under each plan complementary contributions1974 U.S. Tax Ct. LEXIS 28">*31 on behalf of each employee were also made by the employer.

The retirement plans of both Mr. and Mrs. Feistman were compulsory nonforfeitable plans in that each petitioner was required to contribute to the retirement plan from his gross wages and each petitioner was entitled to a refund of his contributions upon termination for reasons other than death or retirement from his employment.

On their 1970 and 1971 income tax returns, petitioners reduced the amount of their reportable gross income by deducting therefrom the amount of the retirement contributions which had been withheld from their wages. Although they did not do the same in respect of their 1968 and 1969 returns, they did file claims for refund of taxes for those years in which they claimed that their earnings for 1968 and 1969 should have been similarly reduced. The Commissioner did not allow these claims for refund in respect of 1968 and 1969, and, in determining the deficiencies for 1970 and 1971, he disapproved petitioners' reduction of their gross income by the amounts of their contributions to the retirement systems.

Educational expenses -- Mr. Feistman and Feistman children. -- Mr. Feistman's duties as a deputy1974 U.S. Tax Ct. LEXIS 28">*32 probation officer were primarily to conduct factual investigations, the results of which were taken into account in the course of imposition of sentences upon persons found guilty of various crimes. In particular, for several years, he was assigned to investigate corporate securities cases.

Neither being a lawyer nor taking law courses was a requirement of Mr. Feistman's position. Nevertheless, like some 63 T.C. 129">*132 of his colleagues, he undertook the study of law. He first took some law courses, apparently not as a candidate for a degree. Later, in 1966 or 1967 he began to attend San Fernando Valley College of Law, and during the years 1968 through 1971 he was a regularly enrolled night student at that law school. He graduated and took his law degree in August 1971. He took the California bar examination in August 1971, and August 1972, but did not pass on either occasion. He plans to take the examination again in February 1975.

During each of the taxable years petitioners had five dependent children. In the years 1968, 1969, and 1970 petitioners spent certain amounts for the education of these children.

On their 1968 income tax return, petitioners deducted $ 1,105.31 as "Cost1974 U.S. Tax Ct. LEXIS 28">*33 of Education." The Commissioner allowed $ 33 of that amount as a deduction. The remaining amount disallowed represented educational expenditures relating to Mr. Feistman's law school expenses and school expenses of the Feistman children.

On their 1969 income tax return petitioners deducted various educational expenses aggregating $ 1,148.39. These expenses related in part to Mr. Feistman's legal education and in part to the education of the Feistman children.

On their 1970 income tax return petitioners deducted $ 380.09 as "Education." The Commissioner allowed a deduction of $ 83 in respect of this amount. No part of the remainder was shown to relate to anything other than Mr. Feistman's legal education or the education of the Feistman children.

On their 1971 income tax return petitioners deducted $ 385.45 as "Univ. San Fernando College of Law." The Commissioner disallowed this deduction in full.

Commuting expenses. -- The place of work of each petitioner was in the city of Los Angeles, but both places were at a considerable distance from their home. During the taxable years both commuted to work by automobile. In Mrs. Feistman's case the round trip was 75 miles and in Mr. 1974 U.S. Tax Ct. LEXIS 28">*34 Feistman's case it was 50 miles. Mr. Feistman's position with the county required that he have a valid driver's license, and, also that he have his automobile available at work. However, because of the inconvenient nature of available public transportation, he probably would have 63 T.C. 129">*133 driven to work in any event, regardless of this requirement. In their returns for 1969, 1970, and 1971, petitioners deducted $ 310, $ 1,154.10, and $ 310, respectively, as costs of transportation between their home and their places of employment. The figure for 1970 includes depreciation on two cars totaling $ 860. The Commissioner disallowed these deductions.

OPINION

1. Contributions to retirement fund. -- Petitioners contend that the amounts withheld from their salaries and paid into their respective retirement funds should be excluded from their wages reportable as gross income. The retirement systems involved are comparable in all significant respects to the retirement system applicable to Federal employees, and it has been established for many years that amounts withheld from salary and contributed to the applicable system are includable in the employee's currently reportable gross1974 U.S. Tax Ct. LEXIS 28">*35 income. This has been reflected not only in rulings and practice of long standing (T.D. 3112, 4 C.B. 76 (1921), declared obsolete by Rev. Rul. 69-31, 1969-1 C.B. 307, 308; I.T. 2162, IV-1 C.B. 29 (1925); Mim. 3995, XII-1 C.B. 25 (1933); I.T. 3362, 1940-1 C.B. 18; Rev. Rul. 56-473, 1956-2 C.B. 22, clarified by Rev. Rul. 72-94, 1972-1 C.B. 23; Rev. Rul. 57-326, 1957-2 C.B. 42; Rev. Rul. 72-250, 1972-1 C.B. 22), but also in judicial decisions in accord with such practice ( Cecil W. Taylor, 2 T.C. 267">2 T.C. 267, affirmed sub nom. Miller v. Commissioner, 144 F.2d 287 (C.A. 4); Isaiah Megibow, 21 T.C. 197">21 T.C. 197, 21 T.C. 197">199-200, affirmed 218 F.2d 687">218 F.2d 687, 218 F.2d 687">691-692 (C.A. 3)). ¹ The situation is one that peculiarly calls for the application of the principle of stare decisis. Cf. Helvering v. Hallock, 309 U.S. 106">309 U.S. 106, 309 U.S. 106">119.1974 U.S. Tax Ct. LEXIS 28">*36 The rights and obligations of millions of employees, both Federal and State, have been determined upon the basis of the foregoing practice and decisions; it is too late now to reargue the point. Not only were the tax liabilities of such employees determined in respect of their wages as earned, but corresponding tax benefits accrued to them when they received payments from the retirement fund upon retirement or otherwise. This case is not fairly 63 T.C. 129">*134 distinguishable from Taylor and Megibow, and we follow them here.

2. Educational expenses. -- The Commissioner has disallowed deductions for two types of educational expenses: Mr. Feistman's law school costs and his children's school expenses. Both are personal and nondeductible.

As to the law school expenses, section 1.162-5(b)(3) of the regulations provides explicitly that no deduction shall be allowed for "expenditures made1974 U.S. Tax Ct. LEXIS 28">*37 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." Mr. Feistman was enrolled in a law school as a candidate for a law degree which he in fact received, and he has attempted, albeit unsuccessfully, to pass the State bar examinations. This is plainly a case covered by the regulations, and no deduction can be approved in respect of these educational expenses. Cf. Patrick L. O'Donnell, 62 T.C. 781">62 T.C. 781; Morton S. Taubman, 60 T.C. 814">60 T.C. 814; David N. Bodley, 56 T.C. 1357">56 T.C. 1357; Jeffry L. Weiler, 54 T.C. 398">54 T.C. 398; Ronald F. Weiszmann, 52 T.C. 1106">52 T.C. 1106, affirmed per curiam 443 F.2d 29 (C.A. 9). Indeed, Mr. Feistman has already presented this issue unsuccessfully to this Court in respect of petitioners' 1967 tax liability, Eugene G. Feistman, 30 T.C.M. 590, 591, affirmed in an unpublished order (C.A. 9).

As to the educational expenses for the children, it is difficult to perceive how these can be anything1974 U.S. Tax Ct. LEXIS 28">*38 other than personal. The disallowance was plainly correct, and, indeed, a challenge thereto borders on the frivolous. Like the matter of the law school expenses, petitioners have already presented this issue unsuccessfully to this Court in respect of their 1967 taxes (see Eugene G. Feistman, supra), and our decision has been affirmed by the Ninth Circuit.

3. Commuting expenses. -- Petitioners finally claim the right to deduct expenses incurred in commuting from their home to their respective places of employment. Here, again, the issue has firmly been settled that commuting costs are to be treated as nondeductible personal expenses. Secs. 1.262-1(b)(5) and 1.162-2(e), Income Tax Regs.; Fausner v. Commissioner, 413 U.S. 838">413 U.S. 838, 413 U.S. 838">839, rehearing denied 414 U.S. 882">414 U.S. 882; Commissioner v. Flowers, 326 U.S. 465">326 U.S. 465; William L. Heuer, Jr., 32 T.C. 947">32 T.C. 947, 32 T.C. 947">951, affirmed per curiam 283 F.2d 865 (C.A. 5). Neither the fact that petitioners have chosen to live a substantial distance from their 63 T.C. 129">*135 places of employment1974 U.S. Tax Ct. LEXIS 28">*39 nor the inadequacy of public transportation changes this conclusion. Sanders v. Commissioner, 439 F.2d 296 (C.A. 9), affirming 52 T.C. 964">52 T.C. 964; United States v. Tauferner, 407 F.2d 243 (C.A. 10); Steinhort v. Commissioner, 335 F.2d 496 (C.A. 5); 32 T.C. 947">William L. Heuer, Jr., supra.

Mr. Feistman, however, makes an additional argument with respect to his commuting expenses. He asserts that they are deductible because he was required by his employer to have his car available for use at work. ²Where a commuter incurs additional expenses because he has to transport his "tools" to work such additional costs may be deductible as a business expense under section 162. Fausner v. Commissioner, 413 U.S. 838">413 U.S. at 839; Harold Gilberg, 55 T.C. 611">55 T.C. 611; Robert A. Hitt, 55 T.C. 628">55 T.C. 628. It is not enough, however, that the taxpayer demonstrate that he carried tools to work. He must also prove that the same commuting expenses would not have been incurred had he not been required1974 U.S. Tax Ct. LEXIS 28">*40 to carry the tools. Thus, if he would have driven to work in any event, the fact that he carries "tools" with him is not an additional expense, and no part of the commuting cost is deductible. Harold Gilberg, 55 T.C. 611">55 T.C. 619. Accordingly, even if the present situation might be analogized to the so-called tool-carrying cases, Mr. Feistman has failed to establish that he is entitled to any deduction in respect of his commuting expenses. He offered no evidence suggesting that absent the requirement that he have his car at work, he would not have driven to his place of employment in any event. In fact, he testified that the public transportation available to him was unreasonable in the length of time it took, which strongly suggests that he would have driven his own car anyway and thus incurred the same commuting expenses regardless of the requirement that he have an automobile at work.

1974 U.S. Tax Ct. LEXIS 28">*41 Decision will be entered under Rule 155.