Opinion
No. 5377.
October 23, 1956.
Walter R. Gelles, Washington, D.C. (Charles K. Rice, Asst. Atty. Gen., Harry Baum, Washington, D.C., Donald E. Kelley, U.S. Atty., and Robert Swanson, Asst. U.S. Atty., Denver, Colo., with him on the brief), for appellant.
No appearance for appellee.
Stephen H. Hart and John Fleming Kelley, Denver, Colo., amici curiae.
Before HUXMAN, MURRAH and PICKETT, Circuit Judges.
The sole question in this case is whether the living costs of a managing partner, and of his family, who is required under the partnership agreement to live at the hotel and manage the same are deductible business expenses of the partnership under Section 23(a)(1) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 23(a)(1). The trial court in a proper case before it held that they were and the Government has appealed.
In Commissioner v. Doak, 4 Cir., 234 F.2d 704, and in Commissioner v. Moran, 8 Cir., the Fourth and Eighth Circuit Courts in well reasoned cases, upon facts indistinguishable from the facts in this case, held that such expenses were not deductible. We agree with the philosophy of those cases.
The judgment is accordingly reversed and the case is remanded with directions to enter judgment for the Government.