¶1concurring: In Rev. Rul. 62-180, 1962-2 C.B. 52, the respondent asserted that the deductible portion of qualifying home office expenses would be determined not by comparing the period of business use to the period of total use, but by comparing the daily hours of business use to the total hours in the day. By this reckoning, for example, it would appear that a taxpayer who used a portion of his home exclusively for business on an 8-hour-a-day basis, e.g., a physician who maintained a regular office there, would be permitted to deduct only one-third of his expenses, on the theory that the space was “available for all uses” the 16 hours it was unused. We had little hesitation in rejecting this test in Gino v. Commissioner, 60 T.C. 304 (1973). In other contexts, such as in dealing with a detached office structure in which some minor amount of personal business will inevitably be transacted, respondent does not arbitrarily allocate periods of inactivity of a dual-use facility to personal use. While there were, of course, hurdles which had to be overcome before home office expenses would have been deductible at all, even prior to the enactment of section 280A, once those hurdles are overcome, we perceive no statutory warrant for applying a more severe proration test for qualifying home office expenses than for the expenses of any other dual-use facility. Cf. sec. 1.274-2(e)(4), Income Tax Regs.
¶2The opinion of the Court of Appeals for the Ninth Circuit reversing us in Gino, 538 F.2d 833 (9th Cir. 1976), appears based, not so much upon the perceived inherent merits of Rev. Rul. 62-180, as upon considerations of administrative deference to the Commissioner’s view “particularly in a close case.” Under section 7805(a), Congress has provided that “the Secretary shall prescribe all needful rules and regulations for the enforcement of this title.” The Court of Appeals in Gino relied on language in United States v. Correll, 389 U.S. 299, 307 (1967), which focused on this delegation and which said: “The role of the judiciary in cases of this sort begins and ends with assuring that the Commissioner’s regulations fall within his authority to implement the congressional mandate in some reasonable manner.” However, section 7805(a) is not apposite here. We deal with a revenue ruling, and one devoid of the congressional reenactment which lent added dignity to the ruling at issue in Correll. We do not have before us a regulation. Rev. Rul. 62-180 did not represent an exercise of the Secretary’s power under section 7805(a). Under section 301.7805-1(a), Proced. & Admin. Regs., “all needful rules and regulations” are to be issued by the Commissioner, "with the approval of the Secretary.” (Emphasis supplied.) Treasury regulations are so issued, but revenue rulings such as Rev. Rul. 62-180 are issued by the Commissioner alone. They represent the views of the National Office of the Internal Revenue Service. Rev. Proc. 78-24, 1978-2 C.B. 503, 504. They are not normally officially approved by the Secretary, unlike regulations, and do not therefore purport to constitute the exercise of the mandate to issue “needful rules and regulations” with such approval. To the contrary, as we have frequently held, revenue rulings, unlike regulations, essentially represent the position of one of the parties before us. Estate of Lang v. Commissioner, 64 T.C. 404, 407 (1975); Stubbs, Overbeck & Associates v. United States, 445 F.2d 1142, 1146-1147 (5th Cir. 1971); Anders v. Commissioner, 48 T.C. 815, 821 (1967), revd. on other grounds 414 F.2d 1283 (10th Cir. 1969), cert. denied 396 U.S. 958 (1969). Hence, even if this is “particularly in a close case,” which may be debatable, we see no warrant for upholding the respondent merely because he has announced his position in a revenue ruling. Since appeal of this decision will not lie to the Ninth Circuit, we therefore respectfully adhere to our original position in Gino.