¶1concurring: I am in full agreement with the result reached by my colleagues in the majority and with much of the reasoning in Judge Sterrett’s careful and lucid analysis and his apparent rejection of the subtle distinctions which seem to be developing in this area. To me, the drawing of distinctions based upon the difference between “seeking” and “securing” employment, upon whether the fee of the employment agency is contingent or payable in any event, or upon whether the agency’s efforts are successful or unsuccessful simply adds unnecessary confusion and complexity to a tax law which already defies understanding even by sophisticated taxpayers. I would similarly reject any attempt to import a capitalization of expenditure concept into a situation such as is involved herein. That concept has generally been confined to cases of acquisition of tangible assets or intangible assets, sucli as a license or goodwill of a going business, or preparation for engaging in a new field of endeavor. Compare Morton Franke, 20 T.C. 511 (195B) (prospective acquisition of newspaper businesses) ; Manhattan Co. of Virginia, Inc., 50 T.C. 78 (1968) (goodwill) ; Arthur E. Ryman, Jr., 51 T.C. 799 (1969) (admission to the bar of a second State); Nathanial A. Denman, 48 T.C. 439 (1967) (preparation for a new field of endeavor). By way of contrast, current deductibility bas normally 'been permitted for advertising expenditures and for educational expenditures to improve one’s skills utilized in existing employment, even though there were indications that some general benefit would in all probability last beyond the year of expenditure. E.g., Consolidated Apparel Co., 17 T.C. 1570, 1582 (1952), affirmed in part and reversed in part on other issues 207 F. 2d 580 (C.A. 7, 1953) (advertising expenses); Cosimo A. Carlucci, 37 T.C. 695, 701 (1962) (educational expenses). Compare Harold Haft, 40 T.C. 2 (1963).
¶2Certainly, in the ordinary affairs of life, common understanding would clearly encompass the fee paid to the employment agency herein as “ordinary and necessary expenses in carrying on any trade or business” (sec. 162) within the “usual, ordinary and everyday meaning of the term.” See Old Colony R. Co. v. Commissioner, 284 U.S. 552, 561 (1932). I think that the judicial interpretation of the term should be the same. “Common understanding and experience are the touchstones of the revenue laws.” See Helvering v. Horst, 311 U.S. 112, 117-118 (1940).
¶3In cases of the instant type, I would adopt the simple test of comparing the position which the taxpayer occupied before and after the change. Perhaps the categorization of corporate executive will not always be applicable, but, in this case, petitioner was at all times a financial corporate executive. By any reasonable standard of application, he ought to prevail.
¶4I am not concerned that such a test will open up a Pandora’s box of unjustified deductions. The courts are not wanting in capability of separating the wheat from the chaff and, at the same time, exhibiting sufficient flexibility not to proliferate taxpayers’ difficulties unnecessarily. Such a task is simply a normal attribute of judicial life.
¶5dissenting: I respectfully dissent. Of course, as the majority points out, the taxpayer was in the business of being a salaried corporate employee. But I would confine that concept much more narrowly than does the majority. I would say the taxpayer was in the business of being an employee of Foimdry when the claimed deductible expenses were incurred. The expenses, however, were not related to his employment by Foimdry but were paid to obtain a new job with another employer. To me this is the same as incurring expenses in locating or finding a new business. Such expenses are not deductible as business expenses because they were not connected with taxpayer’s existing employment. See the regulations under section 212 which provide in part as follows:
(f) Among expenditures not allowable, as deductions under section 212 are the following: … expenses such as those paid or incurred in seeking employment or in placing oneself in a position to begin rendering personal services for compensation, …
¶6And see McDonald v. Commissioner, 323 U.S. 57, and the hoary case of Mort L. Binder, 5 B.T.A. 1181, where the taxpayer was a salaried fair manager who, when his employment ended at one place or in the event of his resignation, sought a new salaried employment in some other State or municipality and where we denied deduction of his expenses in going from place to place in connection with seeking and changing jobs.