Edward Mathews and Clytie Mathews v. Commissioner of Internal Revenue , 310 F.2d 98 ( 1962 )

310 F.2d 98

Edward MATHEWS and Clytie Mathews, Petitioners,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 17760.

United States Court of Appeals Ninth Circuit.

November 27, 1962.

Morris M. Grupp, San Francisco, Cal., for petitioners.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Earl J. Silbert, and Meyer Rothwacks, Attys., Dept. of Justice, Washington, D.C., for respondent.

Before HAMLEY, MAGRUDER and DUNIWAY, Circuit Judges.

PER CURIAM.

1

On this petition to review a decision of the Tax Court of the United States the sole question is whether certain automobile expenses incurred by the taxpayer in 1951 and 1953 are deductible as "ordinary and necessary expenses * * * in carrying on any trade or business, including * * * traveling expenses * * while away from home in the pursuit of a trade or business." (Internal Revenue Code of 1939, Section 23 as amended, 26 U.S.C. 1952 ed. § 23)

2

The facts are stated in the opinion of the Tax Court which is reported at 36 T.C. 483. The Tax Court, with four judges concurring separately and one dissenting, held that the expenses involved were not deductible. The facts in this case are substantially identical with those in Crowther v. Commissioner of Internal Revenue, 9 Cir., 1959, 269 F. 2d 292, except that in this case the petitioning taxpayer husband was not required to carry tools to and from his work in the woods. We conclude that the decision in this case is controlled by our decision in Crowther, particularly when that case is read in the light of our later decision in Wright v. Hartsell, 9 Cir., 1962, 305 F.2d 221. We do not think that our decision in Crowther depended upon the fact that the taxpayer in that case was required to carry his tools into the woods with him.

3

Reversed and remanded.