Opinion
Docket No. 47853.
1955-01-31
PAUL BAKEWELL, JR., PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
Paul Bakewell, Jr., Esq., pro se. Hunter D. Heggie, Esq., for the respondent.
Paul Bakewell, Jr., Esq., pro se. Hunter D. Heggie, Esq., for the respondent.
1. BUSINESS EXPENSE— HEARING AID— SEC. 23(a), I.R.C., 1939.— A lawyer deducted the cost of maintaining his hearing aid as a business expense; held, that the expense was personal and not deductible under section 23(a) of the 1939 Code.
2. THEFT DEDUCTION— WALLET DISAPPEARANCE— SEC. 23(e)(3), I.R.C., 1939.—Held, on the facts, that the mere disappearance of petitioner's wallet from his person did not entitle him to a theft deduction under section 23(e)(3) of the 1939 Code.
Respondent has determined deficiencies in petitioner's income tax for the years 1948, 1949, and 1950 in the respective amounts of $9.12, $222.41, and $210.10.
The following issues are presented:
(1) Is the expense of operating and maintaining a hearing aid for a hard-of-hearing attorney an ordinary and necessary business expense under section 23(a) of the 1939 Code?
(2) Did the disappearance of a wallet from petitioner's person entitle him to a theft deduction under section 23(e)(3)?
FINDINGS OF FACT.
Petitioner, a practicing attorney since 1910, is a resident of St. Louis, Missouri, he filed his 1948, 1949, and 1950 income tax returns with the collector of internal revenue for the first district of Missouri.
Petitioner has used a hearing aid for almost 20 years; without it he cannot hear the loudest tones. He uses this device in his everyday business and social activities. He has particular use for it in his profession as a practicing lawyer.
In 1948, as an itemized deduction on page 3 of his tax return, petitioner deducted $100 for the maintenance of his hearing aid. In 1949 he deducted $310.20, and in 1950, $342.40. These deductions were not taken as medical deductions, that is, the amounts deducted were not first reduced by 5 per cent of petitioner's adjusted gross income. Respondent disallowed these deductions.
In the fall of 1948 petitioner's secretary cashed a check and gave him $100 in new bills. He put the money in his wallet with $15 that was already there. He then placed the wallet, which contained certain business cards, credit cards, and other identification, in his pocket.
Shortly after he received the money, petitioner left his office on a business call. He walked some four blocks in the heart of the St. Louis business district to another building. He then rode in a crowded elevator to his destination in the office building. He returned by the same crowded elevator and the same walk back to his own office. Shortly after he returned to his own office he discovered that his wallet was missing.
Petitioner notified a member and counsel of the Board of Police Commissioners of St. Louis of his loss, but petitioner did not make a formal complaint to the police department. Petitioner was told that pickpockets had been operating in certain buildings. Neither the wallet nor its contents were returned or recovered by petitioner. On his 1948 tax return petitioner deducted $115 for a loss by theft. Respondent disallowed this deduction.
OPINION.
JOHNSON, Judge:
In the first issue petitioner maintains that the expense of his hearing aid is an ordinary and necessary business expense. Respondent has disallowed the deduction as a business expense under the theory that it is a personal expense under section 24(a)(1).
Respondent admits on brief that ‘any expense incurred in the maintenance of a hearing aid would be a deductible medical expense.’ If petitioner had taken the expense of the hearing aid as a medical deduction he would not have had any tax benefit for the expense was not in excess of 5 per cent of his adjusted gross income. See sec. 23(x), I.R.C., 1939.
SEC. 24. ITEMS NOT DEDUCTIBLE.(a) GENERAL RULE.— In computing net income no deduction shall in any case case be allowed in respect of—(1) Personal, living, or family expenses, except extraordinary medical expenses deductible under section 23(x).
The crux of the question is whether these expenses are personal or business within the meaning of the tax law. Admittedly, a hearing aid is a personal thing, but by a particular use can it acquire a business aspect? We do not believe that a hearing aid is different in principle from eye glasses or false teeth. One would hardly consider that eye glasses were a deductible business expense; the courts have ruled on the deductibility of the cost of dentures.
In Reginald Denny, 33 B.T.A. 738, a motion picture actor was allowed as a business expense the cost of a dental bridge to replace teeth which had been knocked out in a prizefight picture. The Denny case was held to be analogous to Charles Hutchison, 13 B.T.A. 1187, where a stunt actor was allowed to deduct the cost of clothing destroyed in performing the feats required in his work.
However, in Sparkman v. Commissioner, 112 F.2d 774, affirming a Tax Court Memorandum Opinion entered March 13, 1939, a motion picture actor purchased artificial teeth to eliminate a hiss which had developed in his speech. The dental work restored perfect enunciation which was required in his profession . Here the Court found that the taxpayer did not prove that the teeth were used for business purposes only, and therefore the expense was personal and not a deductible business expense.
Like the situation in the Sparkman case, the evidence in the present case does not warrant a finding that the hearing aid was used or intended to be used for business purposes only. In fact there is evidence to the contrary that the hearing aid was used in petitioner's purely personal activities. The personal use militates against the petitioner's position and under the rule of the Sparkman case, we must sustain the respondent's determination.
However, there is something more fundamental than whether petitioner gave sufficient evidence to support his position. Section 24(a)(1) denies a deduction in any case, excepting extraordinary medical expense, for personal expense. We believe that a hearing aid is so personal as to come within the meaning of section 24(a)(1). Even if it is used in petitioner's business, in fact even if it is necessary for his successful law practice, the device is so personal as to preclude it from being a business expense. A businessman's suit, a saleslady's dress, the accountant's glasses are necessary for their business but the necessity does not overcome the personal nature of these items and make them a deductible business expense. The same must be said of the hearing aid. The respondent must be sustained on the first issue.
The next issue we must decide is whether petitioner is entitled to a theft deduction under section 23(e)(3) for the loss of his wallet. The essence of petitioner's position is that a theft has been established by the following facts: He placed his wallet in his pocket; later his wallet containing money and identification was not to be found on his person after he had walked four blocks and had traveled up and down in a crowded elevator; and finally the wallet and its contents were not returned to him. Respondent maintains that petitioner is not entitled to the deduction because he has not shown that the wallet was stolen.
In Waddell F. Smith, 10 T.C. 701, mere evidence that property disappeared, a dog in that case, was not proof that there was a loss which would entitle the taxpayer to a casualty or theft deduction. Similarly, in Mary Frances Allen, 16 T.C. 163, where a brooch disappeared, there was no proof of a theft and it was held that the suspicion of a theft was not enough to bring the loss within section 23(e)(3).
Petitioner's position in the present case is similar to that of the taxpayers in the Allen and Smith cases. Here, too, there is only the suspicion of a theft. Not only has petitioner failed to prove an actual theft but there has been no showing that the wallet was found and not returned so as to constitute a theft by operation of law.
On the record, the respondent is sustained on the second issue.
Mo. Rev. Stat., 1939.Sec. 4466. Fraudulent conversion of property.Every person who shall convert to his own use, or make way with or secrete with intent to convert to his own use, any money, goods, right in action or other personal property or valuable thing whatsoever, of the value of thirty dollars or more, belonging to another, with intent to defraud the owner, which shall have been lost, and which such person shall not have obtained lawful title thereto, shall be deemed guilty of grand larceny, and shall, upon conviction thereof, be punished by imprisonment in the penitentiary not exceeding five years. * * *
Decision will be entered for the respondent.