Peurifoy v. Commissioner of Internal Revenue/Dissent Douglas
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK and Mr. Justice WHITTAKER concur, dissenting.
As Commissioner of Internal Revenue v. Flowers,  indicated, the prerequisites to a deduction for travel expenses under § 23(a)(1)(A)  are threefold: The expenses must be reasonable and necessary,  they must be incurred while 'away from home,' and there must be a 'direct connection between the expenditure and the carrying on of the trade or business of the taxpayer or of his employer.' (Emphasis supplied.) 326 U.S. at page 470, 66 S.Ct. at page 252. I think the taxpayers in this case have met those conditions and should be allowed the claimed deductions.
The meaning of 'home' was expressly left undecided in Flowers but is squarely presented in the instant case.  I disagree with the Commissioner's contention that 'home' is synonymous with the situs of the employer's business. Such a construction means that the taxpayer who is forced to travel from place to place to pursue his trade must carry his home on his back regardless of the fact that he maintains his family at an abode which meets all accepted definitions of 'home.' I do not believe that Congress intended such a harsh result when it provided a deduction for traveling expenses. These construction workers do not have a permanent locus of employment as does the merchant or factory worker. They are required to travel from job to job in order to practice their trade. It would be an intolerable burden for them to uproot their families whenever they change jobs, if those jobs happen to take them to a different locality. When they do not undertake this burden they are living 'away from home'  for the duration of the term of the jobs. 
We have, then, not a question of fact which should be resolved below rather than here. We have a mixed question of law and fact. The facts will turn largely on the resolution of the question of law. The error below was mainly in assuming (albeit silently) a narrow construction of the statutory term 'home.'
^3 There is no contention made that the expenses here were not reasonable and necessary.
^4 The Court's opinion does not reach this question because it decides the case on a ground not raised by the respondent. See note 6, infra. Instead it affirms the Court of Appeals decision as relying on a factual determination. The Court of Appeals reversed the Tax Court because it thought the latter tribunal had unwarrantedly extended the 'exception' to the Flowers case for expenses while 'temporarily' away from home. Both courts agreed that taxpayers were away from their actual homes, but the Court of Appeals thought the absence of such duration precluded a deduction. Nowhere in the statute or in Flowers is a distinction made between 'temporary' and 'indefinite' absences from home, and in fact such a distinction improperly emphasizes duration of the absence as the determinative factor in deciding where the taxpayer's 'home' actually is.
^5 This definition of 'home' will not permit any taxpayer who lives apart from his family to deduct his maintenance expenses, no matter what the nature of his trade or his employer's business. If the expenses are necessary and appropriate to neither the employer's business nor the employee's trade, they are personal expenses under § 24(a)(1) (§ 262 of the 1954 Internal Revenue Code, 26 U.S.C.A. § 262). And of course the facts may show that a taxpayer has in fact abandoned his original 'home' as his principal place of residence.
^6 The Flowers case does not hold, as the Court suggests, that the deduction is necessarily unavailable if not required by the exigencies of the employer's business. In that case a traveling expense deduction was denied a lawyer employed by a railroad who chose to maintain his home in Jackson, Mississippi, although, as the Court found, the permanent place of his business was in Mobile, Alabama. The Court held the expenses of traveling between Jackson and Mobile were not appropriate or necessary to the railroad's business. In the present case, however, the expenses incurred were necessary, not to the business of the contractor for whom the taxpayers worked, but for the taxpayers themselves in order to carry on their chosen trade. Flowers did not decide that, because expenses are not required by the employer's business, they can never be justified as necessary to the employee's trade. The Government does not here contend that the expenses were nondeductible because inappropriate to the trade or business of the employer, the ground of decision in Flowers. Such a contention was not assigned as a reason for disallowance of the deduction nor presented to the courts below.