Ronald D. Dalrymple and Robert T. Hollohan, for the respondent.
DAWSON
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of conducting the hearing and ruling on respondent's Motion for Summary Judgment filed herein. After a review of the record, we agree with and adopt his opinion which is set forth below. *747 OPINION OF THE SPECIAL TRIAL JUDGE
4. THE DETERMINATION OF TAX SET FORTH IN THE SAID NOTICE OF DEFICIENCY IS BASED UPON THE FOLLOWING ERRORS:
A. EDUCATIONAL EXPENSE - $9,670.56
5. THE FACTS UPON WHICH THE PETITIONER RELIES, AS THE BASIS OF HIS CASE, ARE AS FOLLOWS:
A. THE PETITIONER HAS FULLY ESTABLISHED THAT THE DISPUTED EDUCATIONAL EXPENSES WERE INCURRED TO MAINTAIN AND IMPROVE THE SKILLS REQUIRED IN HIS EMPLOYMENT AS A PROFESSIONAL PILOT.
B. SAID EXPENSES DID NOT QUALIFY HIM FOR A NEW TRADE OR BUSINESS.
C. SAID EXPENSES WERE IN FULL COMPLIANCE WITH IRC SEC. 162, AND SEC. 1.162-5 OF THE INCOME TAX REGULATIONS.
Respondent filed his answer on July 13, 1981. Thus, the pleadings are closed. Respondent's motion was filed more than 30 days after the pleadings were closed. See Rules 34, 36, 38, and 121.
During 1977 petitioner was employed as a professional pilot for Trans World Airlines, Inc. On their 1977 return petitioners claimed a deduction for education for the following expenses relating to flight training:
The record here contains a complete copy of the Notice of Deficiency, the petition, the answer, respondent's motion and exhibits attached thereto (which includes a copy of petitioners' 1977 return), and respondent's affidavit. On the basis of the foregoing documents, respondent has demonstrated to our satisfaction that there is no genuine issue as to any material fact present in this record respecting the reimbursed flight training expenses and, thus, that respondent is entitled to a decision thereon as a matter of law. In such circumstance, *752 summary judgment is a proper procedure for disposition of this case. Respondent's Motion for Summary Judgment will be granted with respect to the issue decided herein. An appropriate order will be issued.
Footnotes
1. Since this is a pre-trial motion and there is no genuine issue of material fact, the Court has concluded that the post-trial procedures of Rule 182, Tax Court Rules of Practice and Procedure, are not applicable in these particular circumstances. This conclusion is based on the authority of the "otherwise provided" language of that rule. The parties were afforded a full opportunity to present their views on the law at the hearing at Washington, D.C. on January 5, 1983. Petitioners did not appear nor did they file a response to respondent's motion, albeit a copy thereof and a copy of respondent's affidavit together with a copy of the Court's Notice of Hearing were served on them by the Court on November 30, 1982. See Rule 50(c), Tax Court Rules of Practice and Procedure.↩
2. All rule references are to the Tax Court Rules of Practice and Procedure.↩
3. All section references are to the Internal Revenue Code of 1954, as amended.↩
4. For these expenses petitioner acquired an aircraft type rating in a Cessna Citation jet from Martin Aviation of Santa Ana, California. ↩
5. Respondent has disallowed all of these claimed expenses in his deficiency notice.↩
6. We observe that venue on appeal of this case would lie in the United States Court of Appeals for the Ninth Circuit. ↩
7. See Wells v. Commissioner,T.C. Memo. 1982-676; Murphy v. Commissioner,T.C. Memo. 1982-634; Heft v. Commissioner,T.C. Memo. 1982-444; Macon v. Commissioner,T.C. Memo. 1982-376; Byrne v. Commissioner,T.C. Memo 1982-364">T.C. Memo. 1982-364; Beynon v. Commissioner,T.C. Memo. 1982-349↩.
8. Respondent has clearly raised the reimbursement issue in his deficiency notice. That issue is critical to a proper determination of this case. While petitioners did not allege error with respect thereto at any stage of this proceeding it was our decision to give them our reasons as to why their claimed deduction, insofar as the reimbursement is concerned, is not allowable in any event. In the alternative, we could have determined that petitioners, by not raising it in their petition, had conceded it. See Rule 34(b)(4); Gordon v. Commissioner,73 T.C. 736">73 T.C. 736, 739↩ (1980).