UNITED STATES OF AMERICA, PETITIONER V. KARL W. CHRISTEY, ET AL. No. 88-1023 In the Supreme Court of the United States October Term, 1988 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in these cases. Petition for a Writ of Certiorari to the United States Court of Appeals for the Eighth Circuit PARTIES TO THE PROCEEDING In addition to the parties named in the caption, Kathleen Christey, Steven L. Pillsbury and Holly Pillsbury were plaintiffs in the district court and are respondents here. TABLE OF CONTENTS Question presented Parties to the proceeding Opinions below Jurisdiction Statutory provisions involved Statement Reasons for granting the petition OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-22a) is reported at 841 F.2d 809. The opinion of the district court (App., infra, 26a-52a) is unofficially reported at 86-2 U.S. Tax Cas. (CCH) Paragraph 9594. JURISDICTION The judgment of the court of appeals (App., infra, 23a-24a) was entered on March 2, 1988. A petition for rehearing was denied on July 21, 1988 (App., infra, 25a). On October 12, 1988, Justice Blackmun extended the time for filing a petition for a writ of certiorari to and including (Sunday) December 18, 1988. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTORY PROVISIONS INVOLVED The Internal Revenue Code (26 U.S.C.) provides in pertinent part: SEC. 161. ALLOWANCE OF DEDUCTIONS. In computing taxable income under section 63, there shall be allowed as deductions the items specified in this part, subject to the exceptions provided in part IX (Sec. 261 and following, relating to items not deductible). SEC. 162. TRADE OR BUSINESS EXPENSES. (a) In General. -- There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including -- (2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; * * * SEC. 261. GENERAL RULE FOR DISALLOWANCE OF DEDUCTIONS. In computing taxable income no deduction shall in any case be allowed in respect of the items specified in this part. SEC. 262. PERSONAL, LIVING, AND FAMILY EXPENSES. Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living, or family expenses. QUESTION PRESENTED Whether the fact that respondents' workday meals are taken subject to restrictions related to their duties as state highway patrolmen entitles them to deduct the costs of those meals as ordinary and necessary business expenses under Section 162(a) of the Internal Revenue Code (26 U.S.C.), despite the general rule of Code Section 262 that "no deduction shall be allowed for personal, living, or family expenses." STATEMENT 1. Respondents Karl W. Christey and Steven L. Pillsbury are employed as troopers by the Minnesota State Highway Patrol, which is a state agency charged with enforcing traffic laws, investigating traffic accidents, and directing and controlling traffic. /1/ Troopers also provide assistance to the public and cooperate with other law enforcement agencies in pursuing criminals. The normal working day for troopers is between 8 1/2 and 9 hours, although a shift may stretch into 12 hours. Troopers are also subject to call 24 hours a day. App., infra, 2a. Troopers are required to comply with the rules and regulations contained in the General Orders of the Patrol. General Order R 77-20-008 (see App., infra, 47a-48a), which was in effect during 1981 and 1982, provides troopers with specific instructions concerning their meal breaks while on duty. It requires that troopers "eat their meals in a public restaurant adjacent to the highway whenever practical" and that they "report by radio when they eat and * * * advise the telephone number or the code number of the restaurant where they are eating." The General Order prohibits troopers from eating meals at home during working hours, and it has been interpreted to prohibit troopers from bringing meals from home and eating in their patrol cars. Troopers are required to eat their meals at the specific times indicated on the work schedule "unless the call of duty demands otherwise." The General Order also sets forth the times when troopers should eat and the length of time allowed for a meal during a normal work shift, and it provides that no more than two troopers may eat together. Failure to adhere to these instructions renders troopers subject to reprimand. The stated purpose of these requirements "is to promote public safety and obedience to the law through a physical presence of Troopers in uniform and to faciltate, through availability to the public, the reporting of accidents and the dissemination of information with reference to the traffic and motor vehicle laws of the state." The Order also ensures that meal breaks are staggered so as to maintain maximum coverage of patrol areas with minimal call response time. App., infra, 3a, 47a-48a. There was testimony at trial to the effect that troopers are subject during meals to calls for emergencies and other Patrol business to which they must respond immediately. Troopers are also subject to interruptions during meals from members of the general public who are seeking information about road conditions, weather, traffic laws, or other subjects relating to the responsibilities and duties of troopers. Thus, troopers frequently are interrupted during their meals and sometimes are unable to finish meals for which they have paid. App., infra, 3a-4a. /2/ 2. On their federal income tax returns for 1981 and 1982, respondents deducted the costs of restaurant meals they had purchased while on duty during those years. /3/ The Commissioner disallowed the entire amounts of the claimed deductions. Both respondents then paid the taxes due and filed substantially identical claims for refund, asserting that their meal expenses were deductible as ordinary and necessary business expenses under Section 162(a) of the Internal Revenue Code, /4/ because they were required by their employer to eat at certain times and places and had often been required to purchase meals that they could not complete because of their duties. /5/ The Internal Revenue Service either denied the claims or failed to grant them within six months, and respondents each subsequently brought these suits for refund in the United States District Court for the District of Minnesota, where they were consolidated (see App., infra, 26a-27a). /6/ The district court held in favor of respondents (App., infra, 26a-52a). Finding that "(t)he deductibility * * * of the meal expenses is determined with reference to Section 162(a)" of the Code (id. at 39a), the court concluded that respondents' meal expenses were deductible as "ordinary and necessary" business expenses under the general provision of Section 162(a). The court explained that respondents "were subject to a number of duty-related restrictions and requirements concerning their meals while on duty" because they were required to eat their meals in roadside restaurants and those meals were subject to work-related interruptions (App., infra, 43a). The court concluded that these restrictions "effectively extended the performance of their duties from patrol cars on highways to tables in restaurants" (ibid.). The court also stated that respondents' meals were taken "for the convenience and benefit of the Patrol" and not for their own "convenience or comfort * * * (which was often lacking because of frequent, but welcome, interruptions from members of the public and sudden, but not unexpected, emergency calls)" (id. at 44a). A divided court of appeals affirmed (App., infra, 1a-22a). The court held that the district court's conclusion that respondents' meal expenses qualified for deduction as ordinary and necessary business expenses was "a question of fact and will not be set aside unless clearly erroneous" (id. at 5a). The court rejected the government's contention that, as a matter of law, the meal expenses were "personal" expenses rendered nondeductible by Section 262 of the Code. The court first stated that the case was not controlled by two decisions of this Court (Commissioner v. Kowalski, 434 U.S. 77 (1977), and United States v. Correll, 389 U.S. 299 (1967)) that had overruled the Eighth Circuit's prior decision (United States v. Morelan, 356 F.2d 199 (1966)) upholding the deductibility of trooper meal expenses and the exclusion from income of meal allowances. The court explained that those decisions had not addressed the question of deductibility under the general provision of Section 162(a). App., infra, 6a-7a. The court then held that, although "the cost of one's meals is ordinarily a personal expense which is nondeductible under Section 262," this case falls into the category of "certain limited circumstances" in which a personal expense can be deducted as a business expense (App., infra, 7a). The court then proceeded to uphold as not clearly erroneous the district court's conclusion that the restrictions imposed on the troopers' meals in this case rendered their meal expenses deductible as business expenses (id. at 9a-11a). Judge McMillian dissented (App., infra, 11a-22a). He pointed out that Section 262 prohibits any deduction for personal expenses unless expressly allowed by another provision of the Code and that this principle has led the courts consistently to reject claims that the costs of meals consumed at work are deductible (App., infra, 12a-13a). He also noted the relevance of Supreme Court precedent on this issue, stating that if "the general provisions of Section 162(a) were available to render job-related-meal expenses deductible, it is difficult to see why the Supreme Court in United States v. Correll, needed to concern itself with whether they were traveling expenses under Section 162(a)(2)" (App., infra, 15a). Judge McMillian concluded that "the expenses which the district court found to be ordinary and necessary expenses of (respondents') business as employees were instead ordinary and necessary expenses of their daily sustenance," and their deduction "clearly is not permitted by the express provisions of Section 262 of the Internal Revenue Code" (App., infra, 17a-18a). REASONS FOR GRANTING THE PETITION The court of appeals here affirmed as not clearly erroneous the district court's conclusion that the existence of certain job-related restrictions rendered respondents' clearly personal daily meal expenses deductible as ordinary and necessary business expenses under the general provision of Section 162(a) of the Code. This holding cannot be squared with the clear dictates of the Code, which in Section 262 explicitly prohibits the deduction of personal expenses unless "expressly provided" elsewhere in the Code. The holding below also cannot be squared with this Court's decision in United States v. Correll, 389 U.S. 299 (1967), where the Court held that meal expenses are not deductile as "traveling expenses" under Code Section 162(a)(2) if not incurred on an overnight trip. That decision, as well as numerous lower court decisions refusing to allow deductions for meals and other personal expenses incurred in connection with the taxpayer's employment, rests on the basic principle that the deduction of personal expenses must be expressly authorized by the Code and cannot be treated like other, nonpersonal, expenses deductible as "ordinary and necessary" business expenses under the general provisions of Section 162(a). It is apparent that the troopers' meal expenses at issue here were not so imbued with a business necessity as to destroy their character as personal expenses. Cf. pages 16-17 & note 12, infra. The troopers expended these funds because they were hungry, not because the Highway Patrol required it, and the meals were a personal benefit to them just like the meals that other types of workers consume during the workday. In allowing the expenses to be deducted, therefore, the court of appeals has violated the Code's special limitation on the deductibility of personal expenses, and instead invited innumerable claims for their deduction, depending upon the outcome of an undefined inquiry into the almost infinite variety of circumstances of each person's employment. This departure from the statutory structure, unless reversed by this Court, opens the door to the deduction of expenses not authorized by Congress and encourages substantial factbound litigation, which will have major deleterious effects on tax administration. 1. The court below failed to give sufficient consideration to the specific directions given by Congress for accommodating the various provisions of the Internal Revenue Code. In particular, Chapter One of the Code, which is addressed to the "normal taxes and surtaxes" segment of the income tax, expressly delineates the relationship between its general prohibition on the deduction of personal expenses and its general grant of a deduction for ordinary and necessary business expenses, and those instructions provided by Congress control this case. Section 162(a) is contained in Part VI, which covers "itemized deductions," and it permits a deduction for "ordinary and necessary expenses paid or incurred * * * in carrying on any trade or business" -- the deduction found applicable here by the courts below. But the Section introducing Part VI, Section 161, provides: "In computing taxable income under section 63, there shall be allowed as deductions the items specified in this part, subject to the exceptions provided in part IX (sec. 261 and following, relating to items not deductible)" (emphasis added). Thus, as this Court has recognized (Commissioner v. Idaho Power Co., 418 U.S. 1, 17-18 (1974)), the Code expressly makes the availability of itemized deductions, including the general business expense deduction, subject to the superior provisions of Part IX. Part IX addresses "items not deductible," and the Section introducing it, Section 261, states the general rule: "In computing taxable income no deduction shall in any case be allowed in respect of items specified in this part." Section 262 then proceeds to describe the first of these nondeductible items: "Except as otherwise expressly provided in this chapter, no deduction shall be allowed for personal, living or family expenses." Thus, there can be no doubt that, as a matter of law, the Code prohibits the deduction of personal expenses unless the deduction is expressly authorized by a specific provision. And it is similarly clear that a taxpayer's outlays for meals that he consumes -- especially daily meals -- ordinarily constitute a personal expense that is rendered nondeductible under Section 262. See United States v. Correll, 389 U.S. at 301-302 & n.7 Treas. Reg. Section 1.262-1(b)(5). The court of appeals accordingly seriously erred in characterizing the ultimate issue here as a factual question on which it was required to follow the district court unless its decision was clearly erroneous. Rather, the question whether a taxpayer may deduct personal expenses on the ground that the work-related restrictions to which they are subject qualifies them as ordinary and necessary business expenses is a legal question -- one that the Code answers in the negative. The Code does contain some sections that expressly authorize the deduction of personal expenses and therefore override the general nondeductibility rule of Section 262. With respect to meal expenses, Section 162(a)(2) allows the deduction of "traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business." And Section 217 allows the deduction of "moving expenses * * * in connection with the commencement of work by the taxpayer * * * at a new principal place of work"; moving expenses are defined in Section 217(b)(1)(B), (C), and (D) to include certain meals. /7/ In addition, Section 119 of the Code, while not directly addressed to the deduction of meal expenses, permits a taxpayer to exclude from gross income meals "furnished for the convenience of the employer" on the employer's business premises. In accordance with the plain dictates of Section 262, the substantial previous litigation on the question of the deductibility of troopers' meals has focused on whether a deduction is expressly authorized by one of these sections. Section 217, relating to moving expenses, clearly provides no conceivable basis for a deduction. But in United States v. Morelan, 356 F.2d 199 (8th Cir. 1966), several Minnesota state troopers (including respondent Karl Christey) argued that the daily meal allowance paid to them by the state was excludable from gross income under Section 119. The Eighth Circuit agreed (356 F.2d at 201-208) and also held that, in any event, the cost of their meals eaten while on duty would be deductible under Section 162(a)(2) as a traveling expense (356 F.2d at 208-210). This Court, however, subsequently overruled both of the holdings of Morelan. United States v. Correll, supra (meals not deductible as traveling expenses because taxpayer was not away from home overnight); Commissioner v. Kowalski, 434 U.S. 77 (1977) (Section 119 applies only to meals furnished in kind and hence meal allowances are not excludable from gross income). The decision below cannot reasonably be reconciled with this Court's decision in Correll. It is true that the Court there did not expressly reject the proposition that personal meal expenses can be deducted as ordinary and necessary expenses under the general provision of Section 162(a); the taxpayers, in accordance with the dictates of Section 262, had relied only upon the specific provisions of Section 162(a)(2). But the Court's opinion plainly reflects the understanding that a business expense deduction could be available for personal meal expenses only if the specific requirements of Section 162(a)(2) were met, not under the general provision of Section 162(a). The Court noted that the meal costs were a "personal living expense" (389 U.S. at 302) rendered nondeductible by Section 262 unless otherwise expressly provided by Congress (389 U.S. at 300 & n.3, 302 n.7). As a consequence, the Court stated that Congress "made the total cost of meals and lodging deductible only if incurred in the course of travel that takes the taxpayer 'away from home'" (id. at 302 (emphasis added)). And the Court stated that "the taxpayer whose business requires no travel (that would bring him within the reach of Section 162(a)(2)) cannot ordinarily deduct the cost of the lunch he eats away from home" (id. at 302 n.7). Indeed, as Judge McMillian noted in his dissent below (App., infra, 15a), if job-related meal expenses routinely could be deducted under Section 162(a), there was no reason for this Court in Correll to focus on the particulars of the Section 162(a)(2) deduction for traveling expenses. In short, respondents' claim that their workday meals can be deducted as a business expense has already been rejected by this Court. 2. Apart from its inconsistency with Correll, the decision below runs ocunter to a long line of lower court cases that deny deductions for work-related meal expenses. In Moss v. Commissioner, 758 F.2d 211 (7th Cir.), cert. denied, 474 U.S. 979 (1985), the court denied a deduction for meal expenses incurred by law partners at lunchtime business meetings, even though the court assumed that these meetings were necessary to coordinate the firm's business and that lunch was the most convenient time because the lawyers were in court at other times during the day. The Tax Court, which was unanimous in denying the claimed deduction, observed in that case that "(d)aily meals are an inherently personal expense, and a taxpayer bears a heavy burden in proving they are routinely deductible" (80 T.C. 1073, 1078 (1983)). The courts accordingly have denied deductions for meal expenses in circumstances almost identical to those in this case (see Hammond v. Commissioner, 49 T.C.M. (CCH) 1562 (1985), aff'd, 785 F.2d 304 (4th Cir. 1986) (Virginia state trooper's meals); Moscini v. Commissioner, 36 T.C.M. (CCH) 1002 (1977) (police officer's restaurant meals where employer did not permit a bag lunch)) and in quite different contexts (see, e.g., Antos v. Commissioner, 35 T.C.M. (CCH) 387 (1976), aff'd, 570 F.2d 350 (9th Cir. 1978) (accountant's meals taken during overtime work); Matteson v. Commissioner, 33 T.C.M. (CCH) 479 (1974) (nurse's meals at hospital)). /8/ Outside the context of meal expenses, the courts have consistently denied deductions for personal expenses where the connection to employment was considerably stronger than in this case. Even if an expense would not have been incurred "but for" the fact of the taxpayer's employment, it is still not deductible if it is a personal expense. See Kroll v. Commissioner, 49 T.C. 557, 567 (1968). The classic example is the cost of commuting to and from work. See Commissioner v. Flowers, 326 U.S. 465 (1946); see also Pollei v. Commissioner, 87 T.C. 869 (1986) (commuting by police captains who were on duty during drive to work), appeal pending, Nos. 87-1159 and 87-1160 (10th Cir.). Indeed, even where a personal expense is required as a condition of employment, it is not deductible. /9/ See, e.g., Pevsner v. Commissioner, 628 F.2d 467 (5th Cir. 1980) (no deduction for apparel required for work if it is also suitable for ordinary use); Stiner v. United States, 524 F.2d 640 (10th Cir. 1975) (same). /10/ This Court stated in connection with commuting expenses that "(w)e cannot read Section 262 * * * as excluding such expense(s) from 'personal' expenses because by happenstance the taxpayer must carry incidentals of his occupation with him" (Fausner v. Commissioner, 413 U.S. 838, 839 (1973)). The same observation is true of meal expenses; the fact that the meals include some of the burdens of the taxpayer's occupation does not take them out of the category of personal expenses rendered nondeductible by Section 262. The court below relied on the one court of appeals case that appears to diverge from this consistent line of authority. In Sibla v. Commissioner, 611 F.2d 1260 (9th Cir. 1980), a fireman took a deduction for payments he made to an organized mess at the station. The mess had been estabished as part of a desegregation plan and participation was mandatory, unless a fireman was officially excused on the ground of a physical ailment. A plurality of the Tax Court found that the unusual circumstances of the case -- the involuntary participation, including mandatory payment even when the taxpayer could not be present during the mess period, and the fact that the mess was designed to promote desegregation rather than as a benefit for the firemen -- justified the conclusion that the payments to participate in the mess lost their character as a personal expense and could be deducted under Section 162(a). See 611 F.2d at 1262. Paying considerable deference to the Tax Court (ibid.), a divided panel of the Ninth Circuit affirmed. The correctness of Sibla is open to question, /11/ but, in any event, it provides no basis for the decision below or for departing from the long line of decisions noted above. Noting that Sibla rested in large part on the fact that participation in the mess was mandatory and that it was not designed for the benefit of the employees, the Tax Court has distinguished it in more recent case and denied deductions for payments to a firemen's mess. See Duggan v. Commissioner, 77 T.C. 911, 915 (1981); Alvarado v. Commissioner, 49 T.C.M. (CCH) 967, 970 (1985), aff'd, 781 F.2d 901 (5th Cir. 1986). It remains true that, in the absence of unusual circumstances, which are not present here, meal costs are personal expenses that may not be deducted under Section 162(a). /12/ 3. The decision of the court of appeals, if permitted to stand, will have a substantial adverse impact on the administration of the tax laws. Even as limited to state troopers, the decision here is significant. There are 511 troopers in Minnesota alone (App., infra, 28a), and there are many thousands more in other states who likely are subject to meal restrictions analogous to those applicable to respondents. See, e.g., Hammond v. Commissioner, supra. The decision below disturbs what had been the settled rule that these troopers' meal expenses were not deductible, and it encourages a new round of litigation on the topic -- one that should result in disparate treatment for similarly situated taxpayers in light of Correll. Moreover, the result reached by the court below is particularly troubling because it confers a preferential tax advantage upon a select group of taxpayers in a situation that seems clearly at odds with the will of Congress. As this Court noted in Commissioner v. Kowalski, 434 U.S. at 96, the Code did contain a special rule for a short time that permitted state troopers to exclude their meal allowances from gross income. Congress repealed that special rule in 1957, however, explaining that it was "inequitable since there are many other individual taxpayers whose duties also require them to incur subsistence expenditures regardless of the tax effect. Thus, it appears that certain police officals by reason of this (repealed) exclusion are placed in a more favorable position taxwise than other individual income taxpayers who incur the same types of expense * * *." H.R. Rep. 775, 85th Cong., 1st Sess. 7 (1957). Therefore, Congress apparently recognized that the meal situation of state troopers was not significantly different from that of many other individuals who were required by the Code to treat their meal expenses as nondeductible personal expenses. Having deliberately removed the troopers' preferential tax advantage in the form of an exclusion from income, it is hardly likely that Congress at the same time sought to grant the troopers a closely equivalent advantage in the form of a deduction. In any event, the impact of the decision below is not confined to state troopers. The decision broadly pronounces the question of deductibility of meal expenses to be a factual question and proceeds to hold that relatively minor job-related restrictions can cause payments for daily sustenance to be deductible as business expenses. There are many individuals in various walks of life whose job limits their lunch options and requires them to be available for emergencies. The decision below, by embracing a factual inquiry that is not demarcated by any discernible criteria, invites everyone to take to court their "limitless factual variations" (United States v. Correll, 389 U.S. at 307) on meal restrictions, or other personal expenses. The result would be serious erosion of the rule of nondeductibility of personal expenses, and an administrative nightmare with extensive litigation, little predictability, and the likelihood of divergent results on similar facts. The disarray that the Court believed it was preventing in Correll -- having "'every meal-purchasing taxpayer * * * take pot luck in the courts'" (389 U.S. at 302 (quoting Commissioner v. Bagley, 374 F.2d 204, 207 (1st Cir. 1961)) -- would in fact become a reality. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. CHARLES FRIED Solicitor General WILLIAM S. ROSE, JR. Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General ALAN I. HOROWITZ Assistant to the Solicitor General ANN DURNEY MARY FRANCES CLARK Attorneys DECEMBER 1988 /1/ Holly L. Pillsbury and Kathleen M. Christey are parties to those refund actions only because they filed joint income tax returns with their spouses for the years at issue (App., infra, 2a n.3). For convenience, we will use the term "respondents" to refer to Karl Christey and Steven Pillsbury. /2/ The record is unclear on the actual extent of interruptions and their effects on respondents' meal consumption. Respondent Pillsbury testified that he had been called out from meal breaks about 42% of the time in 1981 and about 50% of the time in 1982 (Tr. 59), but was unable to state whether the calls had come at the beginning or end of his break, admitting that on some of those occasions he had finished his meal (id. at 71). Respondent Christey testified that he had never consumed a meal while on duty without interruption (id. at 34), but did not indicate how often his meals were left uneaten. See App., infra, 4a n.4. /3/ On his federal income tax returns for 1981 and 1982, respondent Christey deducted $962.66 and $880.28, respectively for his meals while on duty. Respondent Pillsbury, who kept no records of amounts he spent for meals while on duty during those years, deducted $1,410 and $1,452, respectively, for his meals for 1981 and 1982. Prior to trial, Pillsbury reduced the amount of meal expenses he claimed for 1981 and 1982 to $944 and $968, respectively. App., infra, 31a-33a. /4/ Unless otherwise noted, all statutory references are to the Internal Revenue Code of 1954 (26 U.S.C.), as amended (the Code or I.R.C.). /5/ In addition, respondents claimed that the amounts paid for their meals were deductible under Section 162(a)(2) of the Code, as traveling expenses while away from home. This claim, which is foreclosed by United States v. Correll, 389 U.S. 299 (1967), was not pursued at trial. Respondents also asserted that portions of the cash allowances paid to them by the state are deemed to be for certain expenses, including meal expenses (see Minn. Stat. Ann. Section 299D.03 (West 1982)), and should be excluded from their gross income under Section 119 of the Code, which relates to meals furnished for the convenience of the employer. The district court held that Commissioner v. Kowalski, 434 U.S. 77 (1977), foreclosed this claim (App., infra, 41a-42a), and respondents did not appeal from this holding. /6/ Each respondent originally sought to maintain his suit as a class action, but the district court never certified a class. Respondents abandoned their efforts to proceed with class actions on the basis of assurances by the government that the decision in their cases would probably apply to other similarly situated troopers. App., infra, 27a-28a. /7/ The final sentence of Treas. Reg. Section 1.262-1(b)(5) states: "Except as permitted under Section 162, 212, or 217, the cost of the taxpayer's meals not incurred in traveling away from home are personal expenses." Section 212 of the Code permits a taxpayer to deduct the ordinary and necessary expenses incurred for the production of income. While Section 212 does not expressly deal with travel or meal expenses, the Court has stated that the deductions allowed by this Section are coextensive with those allowed by Section 162 in connection with a trade or business. Trust of Bingham v. Commissioner, 325 U.S. 365, 374 (1945); see also Rev. Rul. 84-113, 1984-2 C.B. 60. /8/ See also, e.g., Fife v. Commissioner, 73 T.C. 621 (1980) (attorney meals with clients); Handenson v. Commissioner, 47 T.C.M. (CCH) 1567 (1984) (doctor's luncheon meetings with staff); Kammerer v. Commissioner, 35 T.C.M. (CCH) 30 (1976) (doctor's meals while on call at hospital); Moffit v. Commissioner, 31 T.C.M. (CCH) 910 (1972) (same). /9/ In this case, it cannot seriously be contended that the meal expenses were a condition of employment. Apart from the fact that meals were to be taken in roadside restaurants, respondents retained control over their expenses. They decided where to eat, what food to order, how much to spend, and, indeed, whether to eat at all. The court of appeals observed that most people would not forgo a meal during an 8 1/2 hour shift and therefore that the troopers' decision to eat should not be regarded as "a question of personal choice" (App., infra, 10a n.11). But whether or not it is regarded as a matter of "personal choice", it is undeniable that the fact that most troopers would choose to eat during that period reflects the personal need for nourishment, not some independent need of the Minnesota Highway Patrol. The majority's observation therefore only lends support to the dissent's conclusion that respondents' meal expenses were "ordinary and necessary expenses of their daily sustenance," not ordinary and necessary business expenses (App., infra, 17a). /10/ See also Drake v. Commissioner, 52 T.C. 842, 843-844 (1969) (cost to officer of frequent haircuts required by military regulations is a nondeductible personal expense); Bakewell v. Commissioner, 23 T.C. 803, 805 (1955) ("A businessman's suit, a saleslady's dress, the accountant's glasses are necessary for their business but the necessity does not overcome the personal nature of these items and make them a deductible business expense."). /11/ The Internal Revenue Service orignally published nonacquiescences in the cases consolidated in Sibla (1978-1 C.B. 2, 3), but it later withdrew them and substituted acquiescences (1985-2 C.B. viii). /12/ The cost of providing meals to business guests in the course of advancing one's business is deductible under Section 162(a). In Sutter v. Commissioner, 21 T.C. 170, 173 (1953), the Tax Court held that in such circumstances the costs of the taxpayer's own meals were deductible only to the extent that "the expenditure in question was different from or in excess of that which would have been made for the taxpayer's personal purposes." This type of apportionment inquiry is analogous to the inquiry originally used in determining the deductibility of traveling expenses. The IRS found that standard to be impossible to administer, and, at its request, Congress enacted the predecessor of Section 162(a)(2), which allows the entire amount of traveling meals and lodging expenses to be deducted. See United States v. Correll, 389 U.S. at 301 n.6. The IRS encountered the same administrative difficulties with apportioning "business lunches." Accordingly, in Rev. Rul. 63-144, 1963-2 C.B. 129, 135, it announced that "(t)he Service practice has been to apply this rule largely to abuse cases where taxpayers claim deductions for substantial amounts of personal living expenses. The Service does not intend to depart from this practice." APPENDIX