Opinion
Docket No. 5289-68.
1970-06-3
KENNETH R. KENFIELD, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Kenneth R. Kenfield, pro se. Rudolf L. Jansen, for the respondent.
Kenneth R. Kenfield, pro se. Rudolf L. Jansen, for the respondent.
T, an engineer employed by X corporation, made payments to Frederick Chusid & Co. to assist him in obtaining a new job as an engineer with increased compensation. As a result of Chusid's assistance T accepted a new job with Y corporation, but, prior to commencing work as the new job, X corporation in order to induce T thereupon decided to remain with X. T's promotion at X was a direct consequence of his acceptance of the new job at Y. Held, T's payments to Chusid are deductible as ordinary and necessary business expenses. Sec. 162(a), I.R.C. 1954. Cf. David J. Primuth, 54 T.C. 374; Guy R. Motto, 54 T.C. 558.
The Commissioner determined a deficiency in the income tax of petitioner for the year 1966 in the amount of $391.99. At issue is whether fees paid by petitioner Kenneth R. Kenfield to Frederick Chusid & Co. for services in helping him seek a new job are deductible as ordinary and necessary business expenses.
FINDINGS OF FACT
Some of the fact are stipulated and are incorporated herein by this reference.
The petitioner is Kenneth R. Kenfield. He resided in Cincinnati, Ohio, at the time he filed his petition and at the time of the trial herein. He and his wife, Mary L. Kenfield, filed a joint Federal income tax return for the taxable year 1966 with the district director of internal revenue, Cincinnati, Ohio.
From June 1959 until the time of the trial herein petitioner was employed as a design engineer with the General Electric Co. in Cincinnati, Ohio. Sometime during March of 1966 he decided to find another job as a design engineer because he was dissatisfied with ‘prospects' at General Electric and he wished to increase his earnings. In order to find another job as a design engineer petitioner sought the services of Frederick Chusid & Co. (Chusid).
Chusid, which described itself as ‘professional career consultants,‘ purported to assist its clients in conducting ‘a thorough, efficient, well planned personal promotion program directed toward securing the most meaningful career objectives and rewards fully commensurate with his abilities.’ Though Chusid disclaimed being an ‘employment agency,‘ petitioner went to Chusid with the expectation that it would find him a new job and he in fact used it as an employment agency. Although Chusid would not guarantee that it would obtain a job for him, he was given oral assurances by a representative of Chusid (a former preacher in whom petitioner had confidence) that there was at least a 90-percent chance that he would get a job at the increased compensation that he was seeking. After receiving such assurances, petitioner entered into an agreement with Chusid entitled ‘Executive Assessment and Sponsored Career Advancement Program.’ Under this agreement petitioner paid Chusid a fee of $1,781.75 for its services, which amount was payable to Chusid regardless of its success in finding petitioner a new job.
Under the arrangement between Chusid and petitioner, petitioner furnished Chusid a list of approximately 1,000 names of possible employers of design engineers. The record does not disclose whether this list was complied from a master list supplied to petitioner by Chusid. Petitioner then prepared (without assistance from Chusid) a resume which Chusid had printed at petitioner's expense. Chusid then mailed the resumes to the name of prospective employers furnished by petitioner. Petitioner's names was not disclosed in the mailings and all responses were directed to Chusid, which in turn informed petitioner of any responses. Petitioner then made arrangements on his own to discuss possible opportunities with the interested companies.
In addition to the foregoing services Chusid required petitioner to take one or two half-hour tests related to his employment objectives. Petitioner had no interest in the outcome of these tests and took them only at the insistence of Chusid; he was interested only in obtaining a job at the desired level of compensation.
As a result of the efforts conducted through Chusid petitioner obtained a firm job offer from American Steel Foundries, Inc. (American), in Chicago, Ill. American's offer to petitioner included an increase in salary over the salary of his current job with General Electric. Petitioner accepted American's offer, but, 2 days prior to his planned departure from General Electric, General Electric offered to increase his salary to an amount comparable to American's offer and to promote him to become manager of the ‘Fuel and Ignition Systems Development,‘ the same ‘group’ or department or division within which he was working. Since the job with American involved moving his family to Chicago, petitioner decided to accept General Electric's offer and he remained at General Electric.
Although General Electric was not aware of Petitioner's arrangement with Chusid, it knew that petitioner was intending to leave General Electric to go to work for American. It was not aware of the terms of American's offer to petitioner, but made its own competing offer to petitioner upon the basis of discussions with him. Although Chusid had no contact with General Electric in respect of petitioner, petitioner's new job or promotion at General Electric was a direct consequence of petitioner's obtaining a new job with Chusid's assistance at American.
After petitioner's decision to remain with General Electric he did not use any of the services still available to him under the Chusid contract, such as ‘post career counseling.’
In his Federal income tax return for 1966 petitioner deducted the $1,781.75 paid to Chusid in respect of its services in finding him a new job. The Commissioner disallowed this deduction, stating in its letter of deficiency:
(a) It is held that the amount paid to Frederick Chusid & Company in the amount of $1,781.75 is not deductible under section 162 or section 212 of the Internal Revenue Code. Such expenses of seeking employment constitute personal expenses which are specifically non-deductible under section 262 of the Internal Revenue Code.
OPINION
RAUM, Judge:
Petitioner made payments totaling $1,781.75 to Chusid as fees and related expenses in order to find new employment as a design engineer. Though he was successful in eliciting a job offer through Chusid's assistance which he in fact accepted, he decided at the last moment to remain with his old employer, General Electric. The issue is whether petitioner's payments to Chusid in connection with his search for a new job are deductible under section 162(a), I.R.C. 1954,
as ordinary and necessary expenses incurred in his trade or business. We hold that these expenses are deductible under that section.
SEC. 162. TRADE OR BUSINESS EXPENSES.(a) IN GENERAL.— There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * *
The facts herein are strikingly similar to those in our decisions in David J. Primuth, 54 T.C. 374, and Guy R. Motto, 54 T.C. 558. In each of those cases the taxpayer also engaged the services of Chusid for the purpose of finding a new job, entering into an agreement with Chusid which was similar to, if not identical with, the arrangement between petitioner and Chusid. As it happened to develop in each case, the taxpayer was in the trade or business of being a corporate executive and in Motto that the taxpayer was in the trade or business of being an engineer. Here, it is likewise plain that petitioner was in the trade or business of being an engineer before and after his arrangement with Chusid, and we so find. Given this finding, we think that his payments to Chusid to help him obtain another job as an engineer were proximately related to his trade or business. This result seems clear from our decisions in Primuth and Motto. In Primuth, at page 379, the Court noted:
Once we have made our decision that the petitioner was carrying on a trade or business of being a corporate executive, the problem presented here virtually dissolves for it is difficult to think of a purer business expense than one incurred to permit such an individual to continue to carry on that very trade or business— albeit with a different corporate employer.
In his brief in the present case the Commissioner expresses disagreement with our decision in Primuth, and urges further that this case is in any event distinguishable from Primuth because there the taxpayer actually obtained new employment as a consequence of his payments to Chusid. See also Morris v. Commissioner, 423 F.2d 611 (C.A. 9, 1970), affirming a Memorandum Opinion of this Court. We do not here undertake to reexamine our decision in Primuth, which was so recent and which was followed in Motto. Nor is it necessary to consider whether any such refinement as is urged upon us by the Government is sound, see concurring opinions in Primuth, for petitioner with the assistance of Chusid in the present case actually obtained a new job with a new employer which he in fact accepted. It was only when his old employer offered petitioner a promotion and matched the increased compensation available at the job with the new employer that petitioner decided to remain with the old employer in the newly offered position. Thus, not only did Chusid assist petitioner in procuring a new job with a new employer, but the promotion obtained from the old employer was a direct consequence of such new job obtained in part at least as the result of the fee paid to Chusid by petitioner. We hold that this case is governed by our holding in Primuth, and that the distinctions urged by the Government are not of sufficient substance here to call for a different result.
Decision will be entered for the petitioner.