¶1dissenting: I respectfully dissent. Section 162(a) allows as a deduction “all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business.” In my opinion, the rental expenses here in issue were not paid or incurred in carrying on any business. Rather, they were paid by petitioner in providing a home for Mmself and his family and are nondeductible “personal, living, or family expenses” under section 262.
¶2In my view, it is beside the point that petitioner’s overtime work or his use of his home office was “appropriate and helpful to the performance of his duties as an attorney for the Internal Revenue Service.” That is not the issue. The question is whether the rental expenses were paid or incurred in carrying on petitioner’s business. And there is nothing to show that he would not have incurred these same rental expenses (or that his rent would have been less) if he had found it more convenient to do Ms overtime work at the office provided and maintained for that purpose by his employer.
¶3■Surely the Commissioner would not be heard to claim petitioner received additional taxable income if he used his Internal Revenue Service office for such personal purposes as storing his golf clubs, keeping his umbrella or raincoat available for a rainy day, eating Ms lunch, taking personal telephone calls, etc. Such uses are merely incidental to the business use of the office. Similarly, petitioner’s use of a room in his apartment for a few hours of overtime work each week is merely incidental to the purely personal purpose for which the rent was expended.
¶4I am aware that language tending to support the majority appears in some prior opinions on home offices and that the Commissioner’s action in this area has not always been consistent. But to say, as does the majority, that the applicable test for judging deductibility of home office expenses is whether “the maintenance of an office in the home is appropriate and helpful under all the circumstances” does not provide a practical guide. Indeed, in my opinion, that test confuses petitioner’s personal convenience in doing overtime work with the purpose for which his rent was actually paid. Where it is not shown that rent was paid for the purpose of acquiring home office space — in addition to the rent otherwise required to obtain living quarters — the reasoning of Fausner v. Commissioner, 413 U.S. 838 (1973), clearly suggests that a deduction is not allowable under section 162(a).