Docket No. 10551.
Samuel Klein, Esq., for the petitioner. Neil D. McCarthy, Esq., for the respondent.
Held, the cost of evening meals eaten by petitioner in restaurants on night when he worked overtime and the cost of clothing worn by petitioner at work, but of a kind adaptable for general wear, are personal expenses and are not deductible for income tax purposes. Samuel Klein, Esq., for the petitioner. Neil D. McCarthy, Esq., for the respondent.
This case involves a deficiency in income tax for 1943 in the amount of $54.67.
The question is whether petitioner is entitled to a deduction for the cost of clothing used in his occupation and the cost of evening meals on days when petitioner worked overtime.
FINDINGS OF FACT.
Petitioner is, and during the taxable year was, a resident of Newark, New Jersey. His 1943 income tax return was filed with the collector of internal revenue for the fifth district of New Jersey.
During 1943 and for many years prior thereto, petitioner was employed as outside superintendent and general utility man for his brother, Max Drill, a general building contractor.
In the taxable year petitioner's employer was running about eight jobs, one as far south as Asbury Park, a distance of 50 miles from Newark.
Petitioner's duties consisted, in part, of seeing that the men employed by his employer were at work, assigning them their duties, picking up and delivering material from job to job, driving a half-ton truck used in connection with the performance of his duties, transporting men from one job to another, filling in for any employee who failed to show up for work, etc.
Petitioner's work involved some hazards, as the result of which his clothing was often soiled with plaster, cement, mud, grease, and the like, and was sometimes torn or snagged. The clothing which petitioner wore at work was not of a type specifically required by his employer. It was of a kind adaptable to general wear.
During 1943 and because of a manpower shortage, petitioner agreed to and did work overtime an average of three nights a week. For a period of between seven and eight months, this overtime work was done on the job at Asbury Park. On evenings when petitioner worked overtime he had his evening meals at restaurants instead of at his house.
Petitioner's employer paid him a bonus of $1,000 for overtime work during 1943. In his return, petitioner claimed deduction for $75 clothing expense and $150 for the cost of meals, a total of $225, which the respondent has disallowed.
The expenses for which petitioner claims deduction under section 23(a) of the Internal Revenue Code relate to food and clothing. Ordinarily, expenses for food and clothing, however, are about as personal as any expense can be; and personal expenses are expressly made nondeductible by virtue of section 24(a) of the code.
It is only in connection with travel expenses that the statute makes specific provision for the deduction of the cost of meals. We do not understand petitioner to contend that he was on a travel status on the nights he worked overtime; and if he did so contend, the evidence would not support it. Petitioner did not go to his house for his lunches during his work day, and he concedes that the cost of lunches is not deductible. He contends, however, that if it had not been for the fact that he worked overtime, for which he was paid a bonus of $1,000, he would not have incurred the expense for his evening meals; and he concludes that such expense was thus necessary to the earning of his income.
So far as deductibility is concerned, we can see no difference in principle between the petitioner's daily lunches and the evening meals he ate in restaurants on those nights when he worked overtime. Both are essentially personal expenses and therefore are nondeductible.
As for the clothing expense, petitioner relies on decisions allowing deduction for the cost and cleaning of uniforms, such as nurses' uniforms, Eleanor E. Meier, 2 T.C. 458; Helen Krusko Harsaghy, 2 T.C. 484; or uniforms of a highway patrolman, Commissioner v. Benson, 146 Fed.(2d) 191. Petitioner claimed $75 expense in this connection, which according to his testimony, was based on his estimate that in an average year he ruins or spoils one suit of clothes, two pairs of shoes, two or three hats, and about three shirts.
Petitioner was not required by his employer to wear a uniform or any other particular type of clothing at his work, and it appears that the clothing which he did wear was of a kind adaptable to be worn generally, away from work as well as at work. It may well be that in petitioner's occupation his suits, shoes, and hats were subjected to harder use and more wear and tear than usual, and that after a day's work his clothing would be soiled to the point where as a matter of personal taste he would not want to wear it in social pursuits. But that is not determinative of the right to a deduction.
The cases relied upon by petitioner are not in point on the facts here present. We conclude that the expense is of a person nature and therefore is not deductible.
Decision will be entered for the respondent.