521 F2d 1065 Melnik v. United States

521 F.2d 1065

75-2 USTC P 9702

John MELNIK and Judith Melnik, Plaintiffs-Appellants,
UNITED STATES of America, Defendant-Appellee.

No. 74-1927.

United States Court of Appeals,
Ninth Circuit.

Aug. 25, 1975.

Richard L. Fishman, Beverly Hills, Cal., for plaintiffs-appellants.

Scott P. Crampton, Gilbert E. Andrews, Robert G. Burt, Ernest J. Brown, Michael L. Paup, Tax Div., U. S. Dept. of Justice, Washington, D. C., William D. Keller, U. S. Atty., Los Angeles, Cal., for defendant-appellee.


Before TRASK and CHOY, Circuit Judges, and von der HEYDT,* District Judge.


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The appeal in this tax case is from the action of the district court in granting summary judgment to the United States on a claim by the taxpayers for the deductibility of educational expenses.


The district court applied Treasury Regulation § 1.162-5(b)(3) to Melnik, an Internal Revenue Agent doing field audits, and determined that his expenditures in acquiring a law degree were made to qualify him for a new trade of business and were, therefore, nondeductible. The taxpayers paid and sued for a refund. Melnik challenges the interpretation of the regulation by the court and also its constitutionality on fifth amendment due process grounds. The court below denied relief on both grounds, 73-2 U.S.Tax.Cas. P 9521 (C.D.Cal.1973).


A similar claim was made by a taxpayer and rejected by the tax court in Weiszmann v. Commissioner, 52 T.C. 1106 (1969), and we affirmed the decision. Weiszmann v. Commissioner, 443 F.2d 29 (9th Cir. 1971). That case is dispositive of the present appeal and we therefore affirm the decision of the district court.


Judgment affirmed.


Honorable James A. von der Heydt, United States District Judge, for the District of Alaska, sitting by designation