Opinion
Docket No. 110010.
1943-06-1
MARCUS O. BENSON AND MINERVA J. BENSON, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Marcus O. Benson, pro se. Alva C. Baird, Esq., for the respondent.
The cost of the uniform of an officer of the California Highway Patrol and expenses of cleaning and repairing are legal deductions from gross income. Marcus O. Benson, pro se. Alva C. Baird, Esq., for the respondent.
This is a proceeding for the redetermination of a deficiency of $6.83 in income tax for the calendar year 1940. The petition alleges that the respondent erred in the determination of the deficiency by disallowing the deduction of $120.02 spent for new uniform equipment and $52.50 for the cleaning of petitioner's uniform.
FINDINGS OF FACT.
Petitioners are husband and wife, residents of Los Angeles, California. They filed a joint income tax return for the calendar year 1940 with the collector for the sixth district of California. The husband will hereinafter be referred to as petitioner.
The petitioner is and has been for more than ten years a traffic officer of the California Highway Patrol. Every officer in that service is required to furnish his own uniform. This includes not only his cap, coat, riding breeches, slacks, and boots, but his shirts and ties as well. All of these articles of clothing must conform strictly to specifications prescribed by the head of the patrol. An officer is also required to furnish his service revolver, holster, handcuffs, etc. The initial cost of the uniform and other equipment ranges at the present time from $245 to $315. An officer is under a considerable annual expense to purchase new parts of his uniform. As a rule he will wear out two or three pairs of riding breeches a year. He is also under an expense of keeping his uniform clean and in repair.
An officer is required to wear his uniform at all times while on duty, except when on special detail as a plain clothes man. He may not wear his uniform when employed for compensation outside of his regular employment as an officer.
It is the practice of the petitioner, as also of all other officers of the patrol, to change from his uniform to civilian attire as soon as he goes off duty and to be in civilian attire except when on duty. On only rare occasions does an officer wear his uniform when not on duty and those are only when he does not have time to change to civilian attire, as when he has a dinner engagement and arrives home late from his day's work.
During the calendar year 1940 petitioner spent the following amounts for equipment:
+---------------------------+ ¦Leather boots ¦$ 17.01¦ +-------------------+-------¦ ¦Two caps ¦8.24 ¦ +-------------------+-------¦ ¦Two pairs breeches ¦42.24 ¦ +-------------------+-------¦ ¦Two worsted shirts ¦16.48 ¦ +-------------------+-------¦ ¦Leather jacket ¦36.05 ¦ +-------------------+-------¦ ¦Total ¦120.02 ¦ +---------------------------+
He also spent $52.50 for the cleaning of his uniform.
In his income tax return for 1940 the petitioner deducted the two above named amounts of $120.02 and $52.50 from gross income. These were disallowed by the respondent in the determination of the deficiency.
The above deductions were ordinary and necessary expenses of carrying on a trade or business and of earning income.
OPINION.
SMITH, Judge:
The questions presented are whether the petitioner as an officer of the California Highway Patrol is entitled to deduct from his gross income of 1940 $120.02 representing the cost of new items of uniform purchased during the year and $52.50 paid for the cleaning of his uniform.
Section 28(a)(1) of the Internal Revenue Code permits the deduction from gross income of ‘All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.‘ Subdivision (2) of the same section, added by section 121 of the Revenue Act of 1942, provides:
(2) NON-TRADE OR NON-BUSINESS EXPENSES.— In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for; the management, conversation, or maintenance of property held for the production of income.
Section 24 of the Internal Revenue Code provides in part: ‘(a) GENERAL RULE.— In computing net income no deduction shall in any case be allowed in respect of— (1) Personal, living, or family expenses.‘
Are the amounts paid out by the petitioner deductible from gross income as ordinary and necessary expenses of carrying on a trade or business, or for the production of income within the intent of section 23(a) of the Internal Revenue Code, as amended by section 121 of the Revenue Act of 1942, or are they to be disallowed as deductions from gross income as coming within the category of ‘Personal, living, of family expenses?‘ The respondent's regulations upon the question presented are noncommital. In section 19.24-1 of Regulations 103 it is stated:
* * * The cost of equipment of any Army officer to the extent only that it is especially required by his profession and does not merely take the place of articles required in civilian life is deductible.
The respondent does not question the right of the petitioner to deduct from gross income any amount paid by him for a revolver, holster, belt, handcuffs, etc. He admits that these are necessary expenses of carrying on petitioner's trade or business. He says, however, that his uniform takes the place of his civilian clothes and that the cost thereof constitutes a personal expense which may not be deducted.
The respondent has promulgated numerous rulings which have a bearing upon the question presented. They have not been entirely consistent.
In I.T. 1488, Cumulative Bulletin 1922-2, p. 145, it was held:
Uniforms of nurses, railway trainmen, barbers, surgeons, and baseball players are held to take the place of ordinary clothing and the amounts expended by the wearer for the purchase of such uniforms are therefore held to be personal expenses, the deduction of which is specifically denied by section 215(a)(1) of the Revenue Act of 1921.
This ruling was changed in part by G.C.M. 19790, Cumulative Bulletin 1928-1, p. 118, to permit the deduction of the cost of uniforms purchased by baseball players where they were not suitable for civilian wear. The Commissioner also held in that ruling that amounts spent for theatrical costumes purchased exclusively for use in the production of a play, and unsuitable for civilian wear, are likewise deductible from gross income.
In G.C.M. 19662, Cumulative Bulletin 1928-1, p. 118, it is held:
* * * that expenditures by jockeys for purchasing and for cleaning riding apparel used solely in the conduct of their business are allowable deductions from gross income under section 23(a) of the Revenue Act of 1936.
In I. T. 3373, Cumulative Bulletin 1940-1, p. 28, it is said:
The Bureau holds that where certain articles of wearing apparel are specifically required by the taxpayer's business, being used solely in his business, and such articles are not adaptable to general or continued wear to the extent that they may be said to replace the wearer's regular clothing, the cost thereof is a deductible business expense. (See G. C. M. 19662, C.B. 1938-1, 118, and G. C. M. 19790, C. B. 1938-1, 118.) This rule applies to helmets, rubber coats, and rubber boots purchased and worn by firemen and policemen in the employ of the City of R. The cost of such articles is, therefore, an allowable deduction for Federal income tax purposes.
The respondent has also held that money allowance received by naval officers for uniforms is not subject to Federal income tax. I. T. 3597, Cumulative Bulletin 1943-3, p. 3, and that allowances received by personnel of the Army for uniforms are not subject to income tax and should be excluded from gross income of the recipients. I. T. 3603, Cumulative Bulletin 1943-5, p. 3.
Whether amounts expended in the acquisition of uniforms required in a trade or business and for keeping them clean and in repair constitute deductible expenses is a question of fact which must be determined upon the evidence in each case.
The evidence in this case shows that the uniform of this officer in the California Highway Patrol is used, ordinarily, only while the officer is on actual duty; that the cost of such uniform is two or three times as great as the cost of a suit of clothes for civilian wear; that the uniform is subject to severe wear and tear; and that an officer is under a considerable expense for keeping his uniform clean and in repair. We can see no reason for treating these expenditures differently from those relating to the cost of other equipment which the respondent allows.
Upon the evidence of record we are of the opinion that the amounts spent by the petitioner for new parts of his uniform in 1940 and for cleaning are legal deductions from gross income.
Decision of no deficiency will be entered.