Whitten v. Commissioner

1983 T.C. Memo. 222, 45 T.C.M. 1378, 1983 Tax Ct. Memo LEXIS 566

• Court: United States Tax Court
• Decided: April 25, 1983
• Docket: Docket No. 6122-81.
• Status: Unpublished

Opinion

RODNEY D. WHITTEN AND CAROL A. WHITTEN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Whitten v. Commissioner

Docket No. 6122-81.

United States Tax Court

T.C. Memo 1983-222; 1983 Tax Ct. Memo LEXIS 566; 45 T.C.M. (CCH) 1378; T.C.M. (RIA) 83222;

April 25, 1983.

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Rodney D. Whitten and Carol A. Whitten, pro se.

Albert B. Kerkhove and Bobby D. Burns, for the respondent.

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DAWSON

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of conducting the hearing and ruling on respondent's Motion for Summary Judgment filed herein. After a review of the record, we agree with and adopt his opinion which is set forth below. ¹

OPINION OF THE SPECIAL TRIAL JUDGE

CANTREL, Special Trial Judge: This case is presently before the Court on respondent's Motion for Summary Judgment filed on February 18, 1983 pursuant to Rule 121, Tax Court Rules of Practice and Procedure.²

Respondent determined a deficiency in petitioners' Federal income tax for the taxable calendar year 1978 in the amount of $838.00.

The sole issue for decision is whether petitioners are entitled to claim an education deduction under section 162 ³ for expenses for flight training courses incurred in 1978 by Rodney D. Whitten, hereinafter called petitioner, for which he received non-taxable reimbursement from the Veterans Administration.

Petitioners' address on the date they filed their petition was 430 Brentwood Drive, Gretna, Nebraska. They filed a joint 1978 Federal income tax return with the Internal Revenue Service.

Petitioners at paragraph 4 of their petition filed on March 27, 1981, allege--

Petitioners disagree with the deficiency because they legally followed Rev. Rul. 62-213 in deducting educational expenses reimbursed by the Veteran's Administration. Rev. Rul. 62-213 was modified by Rev. Rul. 80-173, although the Service contends the old ruling was distinguished and clarified, as more fully explained in an outline of position attached hereto. * * *

Respondent filed his answer (after the case had been removed from the small tax case category on December 8, 1982) on December 27, 1982, at which time the pleadings were closed. Respondent's motion was filed more than 30 days after the pleadings were closed. See Rules 34, 36, 38, and 121(a).

During the taxable year 1978 petitioner was employed as a pilot for Peter Kiewit Sons', Inc. He was also an officer in the Nebraska Air National Guard.

On their 1978 joint return petitioners claimed an educational deduction for flight training in the amount of $4,984. Of this amount, $4,439 was claimed on Schedule A for "tuition, flying fees, books" and $189 and $356 were claimed on Form 2106 for fares and meals and lodging, respectively.

Petitioner received reimbursement from the Veterans Administration for the expenses he incurred in taking the flight training in the amount of $3,397.99, pursuant to 38 U.S.C. 1677 (1976). Respondent has disallowed the claimed flight training expenses to the extent petitioner was reimbursed by the Veterans Administration. We agree that the reimbursed expenses were properly disallowed.

On June 14, 1982, in a court-reviewed opinion, we addressed the very issue herein under consideration on facts substantially similar to those present in this case. We see no reason to traverse that ground once again. In Manocchio v. Commissioner,78 T.C. 989 (1982) (on appeal 9th Cir., Sept. 20, 1982), we held that a deduction claimed for reimbursed flight training expenses was disallowed by section 265(1). ⁴Manocchio is dispositive of this case. ⁵

Rule 121 provides that a party may move for summary judgment upon all or any part of the legal issues in controversy so long as there are no genuine issues of material fact. Rule 121(b) states that a decision shall be rendered "if the pleadings * * * and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law". The summary judgment procedure is available even though there is a dispute under the pleadings if it is shown through materials in the record outside the pleadings that no genuine issue of material fact exists.

The record here contains a complete copy of the notice of deficiency, the petition and answer, respondent's motion, and respondent's affidavit and the exhibit attached thereto (a copy of petitioners' 1978 return). On the basis of the foregoing documents, respondent has demonstrated to our satisfaction that there is no genuine issue as to any material fact present in this record and, thus, that respondent is entitled to a decision as a matter of law. In such circumstance, summary judgment is a proper procedure for disposition of this case. Therefore, we must and do grant respondent's motion.

An appropriate order and decision will be entered.

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Footnotes

• 1. The parties were afforded a full opportunity to present their views on the law at the hearing at Washington, D.C. on April 6, 1983. Petitioners did not appear nor did they file a response to respondent's motion, albeit a copy thereof and a copy of respondent's affidavit (Declaration) together with a copy of the Court's Notice of Hearing were served on them by the Court on February 23, 1983.

• 2. All rule references are to the Tax Court Rules of Practice and Procedure.

• 3. All section references are to the Internal Revenue Code of 1954, as amended.

• 4. That opinion squarely addresses and fully answers all of petitioners' substantive contentions herein.

• 5. See Becker v. Commissioner,T.C. Memo. 1983-94; Russell v. Commissioner,T.C. Memo. 1983-42; Jackson v. Commissioner,T.C. Memo. 1983-41; Wells v. Commissioner,T.C. Memo. 1982-676; Murphy v. Commissioner,T.C. Memo. 1982-634; Heft v. Commissioner,T.C. Memo. 1982-444; Mason v. Commissioner,T.C. Memo. 1982-376; Byrne v. Commissioner,T.C. Memo. 1982-364; Beynon v. Commissioner,T.C. Memo. 1982-349.