OPINION
Sterrett, Judge:
The respondent determined a deficiency in petitioners' Federal income tax for the taxable year 1971 in the amount of $727.94.
The principal issue presented for our decision is whether section 911(a) precludes petitioners from deducting part of their moving expenses, which otherwise satisfy the requirements of section 217. If we conclude that a portion of the moving expenses is not deductible because it is allocable to income exempt from Federal income tax, then we must decide (1) whether the reimbursement of petitioners' relocation expenses, received in 1971, constitutes earned income within the meaning of section 911(b); (2) whether this reimbursement constitutes domestic or foreign source income applying the source rules of sections 861 and 862; and (3) whether these expenses are to be allocated under the provisions of sections 861 and 862 or section 911(a).
All of the facts are stipulated. The stipulation of facts and supplemental stipulation, together with the exhibits attached thereto, are incorporated herein by this reference. By joint motion of the parties, this case was submitted for decision under Rule 122 of this Court's Rules of Practice and Procedure. The relevant facts are summarized below.
William Hughes (hereinafter petitioner) and Mary Ann Hughes are husband and wife who resided in Somerville, N.J., when the petition was filed in this proceeding. Their joint Federal, income tax return for 1971 was filed with the Philadelphia Service Center, Philadelphia, Pa. Mary Ann Hughes is a party to this action only because she joined in this return.
During the entire taxable year 1971 the petitioner was an employee of Sea-Land Service, Inc., of Elizabeth, N.J. Prior to February 21, 1971, his post of duty as an employee was in the United States. On or about February 21, 1971, he was temporarily assigned by his employer to work in Spain from February 24, 1971, until March 13, 1971, when he returned to the United States. He remained in the United States until April 1, 1971, when he returned to his overseas assignment in Spain. He continued to work in Spain until April 19,1973, when he was reassigned to the United States.
In 1971 petitioner received a salary of $14,173 from his employer as well as a salary of $8,479 from Sea-Land Ibérica, a wholly owned Spanish subsidiary of Sea-Land Service. In that year he also received a moving expense reimbursement of $10,243 from Sea-Land Service and other allowances and reimbursements of $3,106 from Sea-Land Ibérica. Petitioners included both reimbursements in their gross income for 1971, and respondent concedes that the reimbursements are earned •income within the meaning of section 911(b).
In 1971 petitioner received foreign income of $30,533 of which $17,041.10 was excludable from gross income under section 911(a).
On their joint Federal income tax return for the taxable year 1972 the petitioners reported the receipt of foreign income in the amount of $26,288 of which they excluded $20,000 from gross income under section 911, and reported $6,288 as being subject to Federal income taxation.
For both taxable years 1971 and 1972, based on the amounts shown above, excluded foreign-source income, under section 911, totaled $37,041 and all foreign-source income totaled $56,821.
On his Federal income tax return for 1971 the petitioner deducted $5,653 in moving expenses incurred in moving to Spain. This deduction was computed under section 217 without regard to the provisions of section 911(a). In the statutory notice of deficiency dated September 24, 1973, respondent determined that this claimed deduction must be allocated between exempt and nonexempt income, and that the portion allocable to exempt income must be disallowed under the provisions of section 911(a).
The primary issue before us is whether a portion of petitioner's moving expenses, otherwise deductible under section 217, must be disallowed because they are "properly allocable to or chargeable against" amounts exempt from taxation under section 911(a), which were earned at the new principal place of employment.
This Court has been confronted with this issue in two prior cases. Jon F. Hartung, 55 T.C. 1 (1970); Richard L. Markus, T.C. Memo. 1971-313. In both of these cases we held that the taxpayer was entitled to deduct his moving expenses because such expenses were personal family expenses, not disallowed by section 911(a). Both cases were reversed on appeal. Hartung v. Commissioner, 484 F. 2d 953 (9th Cir. 1973); Markus v. Commissioner, 486 F. 2d 1314 (D.C. Cir. 1973). Hartung was reversed per curiam by the Court of Appeals for the Ninth Circuit, which adopted the rationale of a dissenting opinion filed in Jon F. Hartung, supra at 5. Richard L. Markus was reversed without a written opinion.
This case does not require the application of the rule in Jack E. Golsen, 54 T.C. 742 (1970), affd. 445 F. 2d 985 (10th Cir. 1971), cert. denied 404 U.S. 940 (1971), since an appeal herein would lie in the Court of Appeals for the Third Circuit which has not yet considered this issue. Having the opportunity to reconsider this question and the opposing arguments, we believe our earlier decisions to be in error and we will no longer follow them. Consequently we sustain respondent's determination.
Petitioner's primary argument is that his moving expenses are deductible in full because they are personal rather than business expenses, and as such they are not "properly allocable to or chargeable against" his income exempted from tax under section 911(a). Petitioner in support of his position points to several elements included in the moving expense deduction which he claims are purely personal. Respondent's answer is that, although petitioner's moving expenses meet the requirements of section 217, the deduction is subject to the allocation provisions of section 911(a).
Before their deductibility was authorized by statute, moving expenses were considered by this Court to be nondeductible personal expenses. Lloyd G. Jones, 54 T.C. 734 (1970), affd. 444 F. 2d 508 (5th Cir. 1971). Section 217 now provides for their deductibility but only when they are incurred in connection with the commencement of work at a new principal place of employment. Sec. 217; sec. 1.2174(a)(2) Income Tax Regs. Such expenses then to be deductible must have a definite relationship to the production of gross income. It is in those situations where the relationship does not exist that moving expenses are purely personal and nondeductible.
We believe that this analysis is supported by the legislative history that accompanied the adoption of section 217. Before the enactment of section 217, an existing employee reimbursed for his moving expenses was not required to include such sum in his gross income because such expenses were considered to have been incurred "in the interest of the employer." The Congress believed that this discriminated against new employees and employees who were not reimbursed. One of the purposes of section 217 then was to equalize this latter group with those employees who were reimbursed. This appears to be a recognition that moving expenses could be incurred in the "interest of the employee" and his trade or business. H. Rept. No. 749, 88th Cong., 1st Sess. (1963), 1964-1 (Part 2) C.B. 125, 182-185; S. Rept. No. 830, 88th Cong., 2d Sess. (1964), 1964-1 (Part 2) C.B. 505, 575-577.
Here we have an expense that is closely related to petitioner's trade or business and the production of gross income. In David J. Primuth, 54 T.C. 374 (1970), we held that an employment fee paid to obtain a job is deemed linked to the earning of income from the new employment. We believe that moving expenses incurred in this situation are comparably related.
Petitioner objects to comparing his situation with that of the taxpayer in David J. Primuth, supra, citing the lack of personal overtones in that case. We believe it to be irrelevant whether portions of the package that Congress has defined as making up the moving expenses deduction do, or do not, have personal overtones. Congress has written that moving expenses are deductible, and it therefore follows that the character of each component has no independent significance.
Section 911(a) itself does not support the distinction urged by the petitioner. Since it specifically excludes from its scope only the section 151 deduction for personal exemptions, it follows that all other amounts otherwise deductible must be disallowed if they are "allocable to or chargeable against amounts excluded" from the taxpayer's income.
In amplification the regulations list several types of deductions that are not allocable to exempt income. It seems apparent from the nature of the items listed that the regulation is concerned with expenses that are not related to income from any source, whether exempt or riot. In our view the moving expenses incurred-are clearly related to the production of gross income, and consequently are of an entirely different character than those deductions listed.
Furthermore, Congress placed moving expenses in the category. of items deductible from gross income to reach adjusted gross income, giving further evidence of their view that such an expense is income-related. Sec. 62(8). If this be not so, such an expense would be allowable only as an itemized deduction similar to the ones listed in the regulation.
Petitioner's next argument is that the reimbursement of his moving expenses, which is includable in gross income under section 82, does not constitute earned income under section 911(b). Under section 911(b) "the term 'earned income' means wages, salaries, or professional fees, and other amounts received as compensation for personal services actually rendered." Since there are no services to which the reimbursement can be associated, the petitioner argues that it cannot represent earned income.
We have found that the reimbursement received by the petitioner is attributable to the gross income earned at the new place of employment. Consequently, it is also attributable to the personal services rendered there by him. Further, section 911(c)(5) lists certain items which may not be excluded from gross income under section 911. Amounts includable in gross income under section 82 are not included in that list.
In addition, petitioner as an existing employee of Sea-Land Service would not have been required, under the pre-section 217 law, to have included the reimbursement in his gross income. This would be, as noted previously, in recognition that the reimbursement was made in the employer's interest. We feel confident that the reimbursement was made in return for petitioner's services and that it represents earned income.
Petitioner's next argument is that a portion of the reimbursement does not represent foreign-source income applying the source rules of sections 861 and 862 and therefore is not eligible for exclusion under section 911. This argument is based on his contention that there are no services to which the reimbursement is connected and the services should be deemed to have been incurred where the particular moving expense item was incurred. As stated previously we believe the reimbursement is attributable to the services rendered in the new location and as such it represents foreign source income which is entirely subject to section 911. Sec. 862(a)(3). After all the whole point of the move was that he be about his employer's business in Spain.
Petitioner's final argument is that the moving expenses incurred must be allocated under the provisions of sections 861 and 862, and specifically section 1.861-8, Income Tax Regs., and not section 911. This argument is related to the previous one and is based on his contention that there are no services to which the reimbursement is connected. However, we have found that the moving expenses incurred are properly allocable to the gross income earned at the foreign location and that the rules of section 1.911-2(d)(6), Income Tax Regs., should be applied.
Decision will be entered under Rule 155.
Reviewed by the Court.
All statutory references are to the Internal Revenue Code of 1954, as in effect during the year in issue, unless otherwise indicated.
Sec. 911(a) provides, in relevant part, that:
An individual shall not be allowed, as a deduction from his gross income, any deductions (other than those allowed by section 151, relating to personal exemptions) properly allocable to or chargeable against amounts excluded from gross income under this subsection.
Sec. 1.911-2(d)(6), Income Tax Regs., provides in part:
However, deductions which are not properly allocable to or chargeable against earned income excluded under paragraph (a) or (b) of this section are deductible in their entirety (subject to specific statutory limitations relating to such items). Examples of such items include personal and family medical expenses, real estate taxes on a personal residence, interest on mortgage on personal residence, and charitable deductions.
Such elements include: (1) The cost of moving the taxpayer's dependents to the job site; (2) the cost of moving household goods of both the taxpayer and his family; (3) after 1969, premove travel, meals, and lodging expenses of both the taxpayer and members of his family to search for a new residence in the vicinity of the job site; (4) temporary living expenses presumably for the entire family in the new location prior to moving into permanent quarters; and (5) expenses incurred incident to the sale or exchange of the taxpayer's former residence.
See sec. 1.911-2(d)(6), Income Tax Regs., quoted in n. 3 supra.
The accompanying committee reports, H. Rept. No. 749, 88th.Cong., 1st Sess. (19.63), 1964-1 (Part 2) C.B. 125,184, and S. Rept. 830,88th Cong., 2d Sess. (1964), 1964-1 (Part 2) C.B. 505, 576, both note that "these [moving] expenses are substantially similar to business expenses."
SEC. 82. REIMBURSEMENT FOR EXPENSES OF MOVING.
There shall be included in gross income (as compensation for services) ány amount received or accrued, directly or indirectly, by an individual as a payment for or reimbursement of expenses of moving from one residence to another residence which is attributable to employment or self-employment.