Rodgers v. Commissioner

*255 Respondent determined deficiencies in the income tax of petitioner and her husband, George B. Rodgers, *47 in the amounts of $ 448.03, $ 650.86, and $ 1,178.32 for the years 1947, 1949, and 1950, respectively. Petitioner claims an overpayment of income tax in the amount of $ 384.50 for the year 1947. Some of the adjustments are uncontested. The issue for decision is whether the respondent properly disallowed the deduction of certain amounts claimed as medical expenses deductible under section 23 (x), Internal Revenue Code of 1939.

FINDINGS OF FACT.

The stipulated facts are so found.

The petitioner resides in St. Louis, Missouri, and filed joint returns with her deceased husband, George B. Rodgers (hereinafter referred to as George), on the cash basis for the calendar years 1937, 1949, and 1950 with the collector of internal revenue for the first district of Missouri.

George was born in 1876 and married petitioner in 1916. Until 1923 he was employed as an engineer in St. Louis and New York. He and petitioner moved to Tulsa, Oklahoma, in 1923 where they remained until 1938. While in Oklahoma George engaged in the oil business. He also acted as a consulting engineer and assisted a sister of petitioner in her business. George and petitioner moved to St. Louis in 1938. Thereafter George's*48 only business activities consisted of trading in stocks and bonds for the account of petitioner, and to a minor extent, for his own account. After moving to St. Louis, petitioner and George made their home with petitioner's brother and sister. Petitioner's sister owned the house in which they lived.

In the early 1940's George began to suffer from a heart condition. In April of 1944 he became a patient of the cardiologist who was to be his physician throughout the remainder of his life. For several months George visited this physician at intervals of three or four weeks. At the time of his first visit, this physician diagnosed George's condition as general arteriosclerosis with particular emphasis on *256 cerebral sclerosis. In other words there was general induration (hardening) or deterioration in the blood vessels of the body, especially the vessels to the brain, causing an impaired blood supply to the brain, the heart, and the body in general. The deterioration of coronary vessels resulted in chronic coronary insufficiency (anginal syndrome) or an impaired blood supply to the heart. Temporary impairment of the circulation to the brain cells caused episodes of transience*49 or so-called "dimouts," something less than a complete fainting attack or loss of consciousness, such as dizziness, confusion, amnesia, temporary loss of speech, and disorientation.

Vascular (blood vessel) deterioration is a part of normal physiological aging and cannot be stopped. However, in George's case, the deteriorative process was abnormally rapid, and the only thing that could be done for him was to attempt to slow down that process. Primarily, aside from medicine to aid the circulation, the treatment consisted of showing him how to live so as to avoid to the extent possible stress and strain on the cardiovascular system.

One of the things that the physician told George was that a stable, warm, not too hot but equable climate would do much in his favor. The physician considered this as important a part of George's regime as the medicine, the reason for this being that particularly wide and abrupt temperature changes cause considerable stress on the cardiovascular system. The body cells function within a narrow one-degree range. The body maintains this even temperature, in part, by changing the output of the heart or flow of blood. A particularly wide and abrupt atmospheric*50 temperature change thus causes a change in the blood flow, throwing a stress on the cardiovascular system. An elderly individual, whose cardiovascular system has become weaker due to aging changes, has less ability to cope with these stresses than a younger person. A person who has a fairly severe degree of generalized arteriosclerosis, as did George, is even at a greater disadvantage.

A great many individuals, including doctors, when they have reached the stage that George had, move to a place such as California that has an equable climate the year round. An equable year-round climate can be obtained, however, by spending the winter months in the South and the summer months in the North. George chose the latter. The physician recommended that he spend the winter months in either Florida or Arizona.

George went to Tucson, Arizona, each winter from 1941 to 1947, inclusive. He also made some trips to Tucson in the summer during that period. Petitioner did not accompany him upon all of these trips. The winter trips prior to 1945 and the summer trips were for the purpose of alleviating a sinus condition with which George was troubled. In the winter of 1945, 1946, and 1947 he *51 went to Tucson upon the recommendation of the cardiologist. Petitioner accompanied *257 him on the 1947 trip. Petitioner and George went to St. Petersburg, Florida, for about 2 months in the winter of both 1949 and 1950. Petitioner and George went to Manitowoc, Wisconsin, for the first time in the summer of 1947. They went back to Manitowoc in the summer of 1949 and were going there again in the summer of 1950 when George became ill in Milwaukee. In 1948 petitioner and George went to Florida in the winter and Michigan in the summer.

Petitioner and George took a trip to Tulsa, Oklahoma, in 1947 and again in 1949. The purpose of these trips was to have their eyeglasses changed. George wore trifocal lenses and had had considerable trouble with the glasses he had gotten in St. Louis. The doctor whom they visited in Tulsa was familiar with George's eyes and seemed to have no trouble fitting him.

Due to the dimouts which George experienced, he was advised by the cardiologist that he should have a companion with him at all times. For this reason petitioner accompanied him on all of the trips taken in 1947, 1949, and 1950. It was the opinion of the cardiologist that these trips*52 slowed down the process of vascular deterioration. On all of the trips taken by automobile George did the driving. The cardiologist advised him not to drive more than 100 or 150 miles per day.

In 1947 petitioner and George departed by train for Tucson on January 12, and began the trip back to St. Louis on April 5. They spent $ 205.63 for transportation, at least $ 750 for room rent, and at least $ 650 for food on the trip to Tucson. They left for Manitowoc, Wisconsin, on July 7, 1947, and returned to St. Louis on August 18, 1947. They spent at least $ 70 for gas, oil, meals, and lodgings on the trip to and from Manitowoc, and spent $ 231 for lodgings and at least $ 300 for meals while at Manitowoc. Petitioner and George left by train for Tulsa to visit the eye doctor on December 15, 1947, and returned to St. Louis on December 19, 1947. They expended, while on the trip to Tulsa, $ 80.04 for transportation, at least $ 24 for lodgings, and at least $ 30 for food. During 1947 petitioner and George expended $ 527.29 for physicians, surgeons, and laboratory services and at least $ 230 for medicines.

In 1949 petitioner and George left by train for St. Petersburg, Florida, on January*53 28, and left St. Petersburg for St. Louis on March 27. They paid $ 245.47 for transportation and at least $ 20 for meals aboard the train. They paid $ 1,290.83 for room and meals in St. Petersburg, of which approximately 50 per cent was for meals. Petitioner and George left St. Louis by automobile on July 20, 1949, and arrived in Manitowoc, Wisconsin, on July 22, 1949. They left Manitowoc on September 14, 1949, and arrived in St. Louis on September 19, 1949. They paid at least $ 378 for lodgings and $ 500 for *258 food in Manitowoc. They expended at least $ 100 for gas, oil, meals, and lodgings en route to and from Manitowoc. To see the eye doctor petitioner and George left St. Louis for Tulsa by automobile on October 16, 1949, and returned to St. Louis on October 22, 1949. They expended at least $ 40 for lodgings and $ 60 for meals while on the trip. During 1949 petitioner and George spent $ 578 for physicians and surgeons and at least $ 312 for medicines.

In 1950 petitioner and George left St. Louis by train on January 30, and arrived in St. Petersburg on February 1. They left St. Petersburg on March 26, 1950, and arrived home in St. Louis on March 27, 1950. They*54 paid $ 214.38 for transportation and at least $ 20 for food on the train. They spent $ 1,265.51 for room and meals in St. Petersburg, of which approximately 50 per cent was for meals. Petitioner and George left by automobile for Manitowoc, Wisconsin, on August 9, 1950. They arrived in Milwaukee, Wisconsin, on August 10, 1950. During the night George became ill and was admitted to the hospital the next day. George returned to St. Louis by ambulance on August 31, 1950, and was admitted to a hospital there. He died on September 10, 1950. Petitioner paid $ 192.80 for meals and $ 192.80 for lodgings while in Milwaukee. She paid $ 75 for the delivery of their automobile to St. Louis. During 1950 petitioner and George expended $ 919 for physicians and surgeons, $ 1,184.67 for hospital expenses, $ 807.50 for nursing services, $ 256 for ambulance services, and $ 171.40 for medicines.

Petitioner and George were not reimbursed for any of the above expenses by insurance or otherwise. The above sums expended for transportation, lodgings, and meals, except the amounts spent by petitioner in Milwaukee, Wisconsin, in 1950, are attributable one-half to petitioner and one-half to George. *55 Their combined adjusted gross income was $ 38,517.10, $ 52,047.53, and $ 64,433.95 in the years 1947, 1949, and 1950, respectively.

The amounts expended on the trips during the taxable years to Arizona, Florida, and Wisconsin were primarily personal living expenses. The amounts expended on the trips to Tulsa in 1947 and 1949 were primarily medical expenses. The cost of returning the automobile to St. Louis and cost of petitioner's food and lodgings in Milwaukee were personal expenses. Payments made for physicians, surgeons, laboratory services, nursing services, ambulance service, and medicine during the taxable years were medical expenses.

OPINION.

Whether certain travel expenses are deductible as medical expenditures under section 23 (x) of the Internal Revenue *259 Code of 1939¹ is the principal question presented. Petitioner's husband, George, was a retired engineer in his seventies and suffered from generalized arteriosclerosis, with particular emphasis on cerebral sclerosis. The cardiologist whom he consulted advised him to seek a warm equable climate in order to avoid stress on the cardiovascular system caused by sudden marked temperature changes. It was the opinion*56 of the cardiologist that avoiding such stresses would slow the process of vascular deterioration and prolong George's life. Also, as George was subject to dimouts, he was advised by the cardiologist that someone should be with him at all times. In line with these instructions George, accompanied by petitioner, traveled in each of the taxable years from their home in St. Louis, Missouri, to either Florida or Arizona in the winter and to Wisconsin in the summer. In 1947 and 1949 they made trips to Tulsa, Oklahoma, in order to visit an eye doctor for the purpose of having their glasses changed. Respondent disallowed the deduction of the cost of their transportation, food, and lodgings while on these trips. Petitioner contests this determination.

*57 Section 23 (x) provides with certain limitations for the deduction from gross income of amounts expended for medical care. "Medical care" is defined by section 23 (x) as follows:

The term "medical care," as used in this subsection, shall include amounts paid for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body (including amounts paid for accident or health insurance).

However, section 23 (x) must be read in conjunction with section 24 (a) (1) of the Internal Revenue Code of 1939 which provides that "Personal, living, or family expenses, except extraordinary medical expenses deductible under section 23 (x)" shall not be deducted from gross income. Thus, Congress has made it clear that items which are primarily personal living expenses are not deductible as "medical expenses." L. Keever Stringham, 12 T. C. 580, affd. (C. A. 6) 183 F. 2d 579. Adhering to this policy Regulations 111, section 29.23 (x)-1, provide:

Allowable deductions under section 23 (x) will be confined strictly to expenses incurred primarily for the prevention or *58 alleviation of a physical or mental defect or illness. Thus, payments for * * * travel primarily for and essential to the rendition of the medical services or to the prevention or alleviation of a physical or mental defect or illness, are deductible.

*260 While the cost of travel under some circumstances may be deductible as a medical expense, "it is obvious that many expenses are so personal in nature that they may only in rare situations lose their identity as ordinary personal expenses and acquire deductibility as amounts claimed primarily for the prevention or alleviation of disease. Therefore, it appears that in cases such as the one now before us, where the expenses sought to be deducted may be either medical or personal in nature, the ultimate determination must be primarily one of fact." L. Keever Stringham, supra, at pp. 584-585. "The question must always involve the acceptance of one and the rejection of the other one of the above alternatives." Frances Hoffman, 17 T. C. 1380, 1385.

We shall first consider the trips to Arizona, Florida, and Wisconsin which were made in order to avoid the detrimental effect*59 on George's health of the summer and winter climate in St. Louis. Not every expense of eliminating an environmental condition which is detrimental to the disease or physical defect with which the taxpayer is afflicted is deductible. In Samuel Ochs, 17 T. C. 130, affd. (C. A. 2) 195 F. 2d 692, certiorari denied 344 U.S. 827, this Court did not allow the deduction of the cost of sending the taxpayer's children to boarding school so as to prevent the recurrence of cancer in the mother and to allow the mother to regain her voice. Similarly, in Frances Hoffman, supra, the cost of keeping a son in California was not deductible where the climate in New York was uncongenial with his impaired heart.

In Frances Hoffman, supra, at pp. 1385-1386, it was pointed out that "One may live in such a way during one's whole lifetime so as to prevent the recurrence of illness and disease and so as to maintain the best health which is possible after some vital organ has become impaired, or one's health has become less than the health of a thoroughly normal*60 and well person." In those cases, as in the case of George, it may be necessary to live permanently in a salubrious climate. If a taxpayer lives in a place having such a climate throughout the year, the fact that the climate is beneficial to his health does not make his personal living expenses deductible. Cf. Frances Hoffman, supra.However, another taxpayer may live in a place where, because some vital organ has become impaired, the climate during 6 months out of the year is detrimental to his health. Perhaps, under some circumstances the cost of traveling to and living in a place having a salubrious climate during those 6 months would be primarily a medical expense. Cf. L. Keever Stringham, supra.In many situations economic necessity (such as employment), the amount of travel required, the temporary nature of the illness, or the like, may make it impracticable to move permanently to a place having a suitable climate. However, under other circumstances, where the taxpayer chooses for purely personal considerations to travel during a large part of the year for the remainder of his life rather than to live in a locality*61 having a climate suited to his health *261 throughout the year, the cost of traveling to and living in a salubrious climate may be primarily a personal expense. While a taxpayer is certainly not required to live in a manner leading to the fewest tax benefits, we do not think, under the circumstances described, that Congress intended to subsidize the cost of the taxpayer's travel and his living expenses in resort hotels even though it would be detrimental to his health to remain throughout the year in the locality in which he chooses to make his home.

Since each case must turn upon its own particular facts and circumstances, we are of the opinion that the costs of George's and petitioner's repeated migration to the South in the winter and to the North in the summer were primarily personal living expenses rather than medical expenses. Although it was desirable in order to slow down the process of vascular deterioration to seek a warm, equable climate and it was certainly inadvisable for George to travel and to live alone during a large part of the year, the choice of this migratory life over permanent settlement in a salubrious climate was apparently motivated entirely by personal*62 considerations, including the desire to spend most of the year in St. Louis. Unlike the taxpayer in L. Keever Stringham, supra, it was not impractical for George and petitioner to live permanently in a salubrious climate. Also, while the travel was beneficial, in that it avoided the detrimental effect of the cold winters and hot summers in St. Louis, the trips were not made in order to receive medical treatment or therapeutic aid. The climate in Arizona, Florida, and Wisconsin did not mitigate or alleviate George's condition, but was simply less detrimental than the climate in St. Louis.

The vascular deterioration from which George suffered was not unlike that experienced by other older people, only more rapid. In a sense the benefit he derived from the climate in Arizona, Florida, and Wisconsin was no different from that acquired from the same climate by all elderly vacationers. Cf. L. Keever Stringham, supra, at p. 585. Within limits George was able to live a completely normal life for his age, and the principal treatment consisted of avoiding conditions, such as extreme temperature changes, which would place a stress*63 upon his impaired cardiovascular system. George's condition was permanent and it was the experience of his physician that persons in the same condition may live for 20 years or longer. To obtain the climatic condition favorable to his impaired cardiovascular system required not just a few trips but an entirely new mode of life or place of residence. In our opinion the facts in the instant case do not differ materially from the situation presented in Frances Hoffman, supra, where this Court held that expenses fell within the provisions of section 24 (a) (1) rather than section 23 (x).

*262 The trips to Tulsa, Oklahoma, in 1947 and 1949 were of an entirely different nature. They were made for the primary purpose of visiting an eye doctor who was familiar with George's eyes and who could fit him properly with trifocal lenses. George had been unable to secure proper lenses in St. Louis. Petitioner accompanied George on these trips as it was inadvisable for him to travel alone. She also had her glasses changed. Travel for the purpose of receiving medical attention clearly falls within the provisions of section 23 (x), and the cost of petitioner's*64 accompanying George on these trips is also deductible. L. Keever Stringham, supra; 1946-1 C. B. 75.

Petitioner failed to prove the exact amounts expended for food while on the trips to Tulsa, nor did she show that the amounts paid to hotels were entirely for lodgings rather than partly for personal telephone calls and other nondeductible items. Bearing heavily on the petitioner, who is responsible for the uncertainty, we have found that she and George expended at least the amounts set forth in our findings of fact. Cohan v. Commissioner, 39 F. 2d 540. In our opinion, these amounts and the additional sum expended for transportation in 1947 ² may be properly deducted as medical expenses. *65 L. Keever Stringham, supra.Contrary to respondent's contention we do not think this Court is precluded by Regulations 111, section 29.23 (x)-1, ³ from allowing the deduction of the cost of meals as medical expenses because the expenditures were not substantiated in the manner specified in that section.

Decision will be entered under Rule 50.