Opinion
Docket No. 28013.
1950-12-18
SAMUEL DOBKIN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Philip Baskin, Esq., for the petitioner. George C. Lea, Esq., for the respondent.
INCOME— DEDUCTIONS— MEDICAL EXPENSES— SECTION 23(x).— Expenses of an annual Florida trip, advised by a physician, several years after a coronary occlusion, were not medical expenses within section 23(x) where a close connection between the expenses and the cure, alleviation, or prevention of some existing or imminent disease or physical defect is not shown. Philip Baskin, Esq., for the petitioner. George C. Lea, Esq., for the respondent.
The Commissioner determined a deficiency of $395.20 in income tax for 1947. The only issue is whether he erred in disallowing a deduction for medical expenses representing principally the cost of a winter visit to Florida claimed under section 23(x) of the Internal Revenue Code.
FINDINGS OF FACT
The petitioner, unmarried, filed his individual income tax return for 1947 with the collector of internal revenue for the twenty-third district of Pennsylvania.
The petitioner, who was about 62 years of age in 1947, was not actively engaged in business. He owned a small retail furniture store in Irwin, Pennsylvania, which was operated by his brother. He reported gross income of $5,805 for the year, consisting of rent, dividends, and compensation from the store.
He claimed a deduction for medical expenses as follows:
+-----------------------------------------------+ ¦Metropolitan Insurance Accident Policy¦$31.45 ¦ +--------------------------------------+--------¦ ¦Dr. Mullins ¦25.00 ¦ +--------------------------------------+--------¦ ¦Dr. Lubow ¦25.00 ¦ +--------------------------------------+--------¦ ¦Hotel bill in Florida ¦1,275.00¦ +--------------------------------------+--------¦ ¦Food and laundry in Florida ¦725.00 ¦ +--------------------------------------+--------¦ ¦Fare to Miami and return ¦134.15 ¦ +--------------------------------------+--------¦ ¦Net expenses ¦2,215.60¦ +--------------------------------------+--------¦ ¦Less 5 per cent of gross income ¦290.25 ¦ +-----------------------------------------------+
1,925.35
The petitioner attached to his return a statement signed by Dr. Lubow dated March 11, 1948, that Dobkin, his patient for several years for a coronary condition, had been advised to spend the winter in Florida.
The Commissioner, in determining the deficiency, disallowed the claimed deduction with the explanation that ‘The Txpr, went to Fla. for the winter season & no proof has been submitted that such trip was for treatment or required by condition which climate would affect.‘
The petitioner had a coronary occlusion in June 1944. His doctor, Lubow, sent him to a Pittsburgh hospital and he remained there 6 weeks or more under the care of a heart specialist. The latter informed the petitioner, when he left the hospital, ‘that although it would not be absolutely necessary for the petitioner to go to Florida for the winter months, it would be beneficial, in view of petitioner's condition, and he advised the petitioner, if he could manage it, to spend the winter months in Florida.‘ Dr. Lubow concurred in that advice. The doctors also prescribed some medicines which he took for several years thereafter.
The petitioner had never taken a vacation. He had never been in Florida, had no friends there, and did not want to go but went upon the advice of his doctors. He traveled alone, lived in a hotel, and went out for his meals. He was in Miami, Florida, during the months of November through April in 1944-1945, 1945-1946, and 1946-1947. The expenses of the third visit are the ones in controversy. The amounts claimed were actually expended at times not shown by the record.
A coronary occlusion is a closure of one of the arteries which supplies blood to the heart. If the person lives, healing is as complete as it ever will be within a year or less. A change of climate would have no alleviating, mitigating, or curing effect in respect to the occlusion. A change of climate would only affect the general health of the person.
The cost of the petitioner's visit to Florida from November 1946 to May 1847 does not represent amounts paid for the cure, mitigation, treatment, or prevention of disease and does not represent expense of medical care within the meaning of section 23(x), Internal Revenue Code.
OPINION
MURDOCK, Judge:
The petitioner claims that the cost of his trip to Florida, begun in November 1946 and ended in April 1947, is medical expense of 1947 deductible under section 23(x). The Commissioner has held to the contrary and the petitioner has the burden of proof. The Commissioner makes no part of the fact that a part of the amount in question might have been paid in 1946. His principal argument is that this trip lacked the direction connection with the cure, mitigation, treatment, or prevention of some specific disease that is required by section 23(x) and is nondeductible as personal or living expenses within section 24(a)(1). His regulation requires that the expense be ‘incurred primarily for the prevention or alleviation of a physical * * * defect or illness‘ and only includes ‘travel primarily for and essential to the rendition of medical services or to the prevention or alleviation of a physical * * * defect or illness.‘ Regulations 111, section 29.23(x)-1.
Not all trips south to avoid harsh northern winters come within the law or the regulation. Many are taken in the belief that the traveler will benefit by warm southern climate whereas the harsh winter at home farther north might be injurious to his health. Some take trips to resorts upon the advice of physicians, but the cost of travel of that kind does not come within section 23(x) merely because of a possible benefit to the general health of the traveler. Edward A. Havey, 12 T.C. 409. Cf. John L. Seymour, 14 T.C. 1111. There must be some existing or imminent illness or existing physical defect which the trip is supposed to alleviate, cure, or prevent.
The petitioner points to the coronary occlusion which he suffered in 1944, two and one-half years before the beginning of the taxable year, and claims that this third annual trip, like the two previous ones, was to cure, mitigate, treat, or prevent that disease or illness. At least one doctor advised him to take this third trip, but neither of his doctors testified and the evidence does not show that they prescribed this trip to cure or alleviate the 1944 attack, or in the belief that it would prevent a recurrence, or might reasonably be expected to affect any existing condition of his heart. The 1944 attack occurred in summer weather. It is entirely possible that neither physician expected any benefit from this trip except some benefit to his general health. There is evidence to show that this trip would in no way affect the 1944 coronary occlusion from which he had already recovered. There must be a closer relation between the expenditure and some disease, illness, or defect than has been shown here to make travel and living expenses, such as these, deductible as medical expenses under section 23(x). Edward A. Harvey, supra.
It is unnecessary to go into the question of whether, under any circumstances, the entire amount of living expenses in Florida would be deductible or whether only a part, for example, the excess, due solely to the medical care, over the usual living expenses in Florida would be deductible or whether only a part, for example, the excess, due solely to the medical care, over the usual living expenses, would be used in computing the deduction. Cf. L. Keever Stringham, 12 T.C. 580, affd., 183 Fed.(2d) 579.
Decision will be entered for the respondent.