
    440 F. 2d 1356
    LOUIS H. ROMBACH AND ANN M. ROMBACH v. THE UNITED STATES
    [No. 72-68.
    
      Decided March 19, 1971]
    
      
      Louis E. Rombaeh, pro se. Samuel V. Abramo, attorney of record.
    
      Seth Stopeh, with whom was Assistant Attorney General Johtmie M. Walters, for defendant. Philip R. Miller and Joseph Kovner, of counsel.
   Pee Curiam:

This case was referred to Trial Commissioner David Schwartz with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Eule 134(h). The commissioner has done so in an opinion and report filed on July 20,1970. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by plaintiffs. Defendant requested the court to adopt the commissioner’s findings of fact and recommended conclusion of law. The case has been submitted to the court on the briefs of the parties and oral argument of plaintiff, Louis EL Eombach, pro se, and of defendant’s attorney.

Since the court agrees with the commissioner’s opinion, findings of fact and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiffs are not entitled to recover and the petition is dismissed.

OPINION OP COMMISSIONER

Schwartz, Commissioner: The issue in this suit for refund of income taxes for 1961-1964 is the deductibility as a business expense of the costs to the taxpayer of his attendance at law school and admission to the bar. The taxpayer is a du Pont research chemist who transferred to a patent law division as a trainee, pursuant to an arrangement whereby he would attend law school to train himself to become a qualified patent attorney.

Section 162 of the Internal Eevenue Code of 1954 provides for the allowance as a deduction of “all the ordinary and necessary expenses paid * * * during the taxable year in carrying on any trade or business.” 26 U.S.C. § 162 (1952 Ed. Supp. III). Section 262 of the Code provides that “no deduction shall be allowed for personal * * * expenses.” 26 U.S.C. § 262 (1952 Ed. Supp. III). The governing regulation is § 1.162-5 of the InCome Tax Eegulations as adopted in 1958 (T.D. 6291, 1958-1 Cum. Bull. 63) and in effect until its amendment in 1967 (T.D. 6918, 1967-1 Cum. Bull. 36). While plaintiff may rely on either the old or the new regulation (Rev. Rui. 68-191, 1968-1 Cum. Bull. 67), the new regulation would avail him nothing, and it is not cited in his brief.

The 1958 regulation, whose relevant part is set out in the footnote, provides in subdivision (a) that expenditures are deductible if for education “undertaken primarily for the purpose” of “(1) Maintaining or improving skills required by tlie taxpayer in Ms employment,” or “(2) Meeting the express requirements of a taxpayer’s employer * * * imposed as a condition to the retention by the taxpayer of his salary, status or employment.” Subdivision (b) provides that expenditures are not deductible “if they are for education undertaken primarily for the purpose of obtaining a new position or substantial advancement in position * *

The issue, one of fact, is which of possibly multiple purposes is “primary” in the taxpayer’s mind. The obvious difficulties of such a rule have led to the revision of the regulation in 1967 to eliminate the test of primary purpose.

The petitioner, Dr. Louis H. Rombach, is a Mghly qualified chemist, with an M.A. and Ph. D. in organic chemistry. He was employed in the Research Division of the Polychemicals Department of the du Pont Company in Wilmington until 1960, when he voluntarily transferred to the Patents and Contracts Division. That division acted as patent counsel for the Polychemicals Department; its work included investigations of patentability and the drafting of patent applications and their prosecution before the United States Patent Office.

The manager of the Patents and Contracts Division was Mr. Allan R. Plumley, a patent attorney. Mr. Plumley recruited, for his division, both law school graduates and scientists with an appropriate background. He believed strongly that legal training was necessary for full qualification as a patent attorney. With the approval of the management, he therefore required the scientist recruits to attend law school at their own expense. His expectation that in addition they qualify as attorneys by becoming admitted to a bar was tantamount to a further requirement. Accordingly, except for secretaries and a few technicians, all the members of Ms division were patent attorneys or were attending law school.

The scientists were required to go “up or out.” A recruit from within du Pont who did not successfully complete law school would be required to leave, without any assurance of other employment in the company.

Dr. Bombach. agreed to all this when he accepted the job in the Patents and Contracts Division: that during his education his job would be temporary, and that he would either succeed at law school and become a patent attorney, or leave.

On joining the Patents and Contracts Division, Dr. Bom-bach became a “patent chemist,” or a “helper” to the patent attorneys in the division, Mr. Plumley’s informal terms for what was a patent trainee. The work of a trainee consisted of patent investigations and the drafting of patent applications or portions of patent applications, in a junior capacity, under the supervision of qualified patent attorneys.

As contemplated, Dr. Bombach attended law school, registered as a patent agent with the Patent Office and passed the bar examination in two jurisdictions, the District of Columbia and Delaware. He completed the four-year night course at Temple University Law School in Philadelphia. He traveled to Philadelphia every weekday evening, after finishing his day’s work in the Patents Division in Wilmington.

Further details appear in the accompanying findings of fact, which are based on all the evidence, including the testimony given by both Dr. Bombach and Mr. Plumley. The witnesses were honest and credible men. Subjective testimony of personal knowledge and intention is, however, so affected by distance in time and personal interest and involvement as cannot prevail over inferences from action and other objective facts.

Petitioner contends that the expenditures were deductible under subparagraph (a) (1) of the regulation, as incurred for education undertaken primarily to maintain and improve the skills of patent drafting. In support, it is urged that Dr. Bombach was qualified to draft and drafted patent applications before he came to the Patents and Contracts Division; that the work of the division was essentially nonlegal; that there he continued to exercise the skill of drafting patent applications and thus that he went to law school primarily to sharpen skills he was using at the time.

The facts dispose of this contention. Dr. Bombach did not exercise the skills used in the Patents Division on the rare occasions when in the Research Division he drafted a portion of a patent application for an invention he himself had perfected. The work of the Patents and Contracts Division was patent work, entirely different from the research work of the Research Division. The work of the Patents Division, according to Mr. Plumley, whose word was law, required legal skills. In the Patents Division, therefore, Dr. Rombach did only prentice work; he attended law school to acquire the skills he did not already have, and was not required to have, either as a research chemist or as a patent trainee. It is no matter that as a helper in the Patents and Contracts Division he drafted applications under the supervision of qualified patent attorneys. The skills of a patent trainee, untrained in the law, are vastly different in kind from those of a qualified attorney who specializes in patent work. It therefore cannot be said that the purpose of the education was to maintain or improve the “skills required by the taxpayer in Ms employment” either as a research chemist or a patent trainee.

The next issue is whether the expenditures are deductible under subparagraph (a) (2) as undertaken primarily for the purpose of “Meeting the express requirements of a taxpayer’s employer * * * imposed as a condition to the retention by the taxpayer of his salary, status or employment.” The factual precondition for tMs contention is met. The employer, for this purpose Mr. Plumley, did in fact expressly require that Dr. Rombach attend law school and pass the bar, or lose his employment.

Thus, a purpose of Dr. Rombach was compliance with his employer’s requirement. Another purpose was to become a patent attorney. The question for decision is which purpose was “primary” — retention of his job as patent trainee, as Dr. Rombach urges, or, as urged by the Government, the attainment of a new position, patent attorney. If the former, the costs are deductible under subparagraph (a) of the regulation; if the latter, they are under subparagraph (b) not deductible.

The separation of purposes into primary and otherwise is of course artificial. Dr. Rombach’s purpose was in reality unitary — the achievement of the goal of the position of patent attorney upon the successful completion of law school and admission to the bar. While the program included, en route, the retention of the job as trainee while in training, its plainly predominant element was the new position of patent attorney.

The new position was more than a job. It was also a new profession, law. As a member of the bar, Dr. Rombach would be qualified to practice all forms of law, equally with other lawyers. His intended profession included even a recognized speciality — patent law — usually open only to fully qualified lawyers who have also been educated in some technology or science.

There is no need, for the decision here, to praise the material rewards of the law as a profession, or to speak of the special rewards in this age of technology for those lawyers, skilled both in science and in patent law, who specialize in obtaining for inventors their lawful monoply under the patent laws. Dr. Rombach’s four grim years of work by day in Wilmington and schooling by night in Philadelphia attest to his drive to become a patent attorney. His pride in his achievement is suggested by the fact that he sought and obtained admission to two bars.

It is frivolous to suggest that his primary purpose was “the retention * * * of his salary, status or employment” as a temporary patent trainee. He did not give up research in chemistry, and work for four years as a helper in a patent office and as a student in a law school, in order to retain his job as a patent trainee. The very purpose of the education was to bring the position as trainee to an end, and replace it with the new job of patent attorney. In the words of sub-paragraph (b), his education was “undertaken primarily for the purpose of obtaining a new position” as a patent attorney. Also, since he intended to become a lawyer, specializing in patent law, and since his education fulfilled the minimum requirements for that specialty, his case comes within the words of the last sentence of subparagraph (b) :

In any event, if education is required of the taxpayer in order to meet tire minimum requirements for qualification or establishment in Ms intended trade or business or specialty therein, the expense of such education is personal in nature and therefore is not deductible.

While each case rests on its own facts, the present opinion is not being written on a clean slate. Similar corporate practices for the training of patent attorneys have given rise to a number of cases of taxpayers educated in a science who, as did Dr. Bombach, took a corporate job as patent trainee under an arrangement requiring successful completion of law school study. The Court of Appeals for the Third Circuit and the Tax Court have held the costs nondeductible in several of these cases: Sandt v. Commissioner, 303 F. 2d 111 (3d Cir., 1962); Lamb v. Commissioner, 46 T.C. 539 (1966), appeal dismissed as moot, 390 F. 2d 157 (2d Cir., 1968); Ronald F. Weiszmann, 52 T.C. 1106 (1969); Robert H. Montgomery, 23 T.C.M. 599 (1964). The first of these cases, Sandt, involved the very same Patents Division and the same Mr. Plumley as are involved in the instant case.

The District Court in the Southern District of New York has held the contrary, in Williams v. United States, 238 F. Supp. 351 (1965). Williams was an electrical engineer who took a job as a patent trainee with 'IBM in circumstances and on terms substantially identical with those in Dr. Bombach’s case. Pie, too, was to become a lawyer or be dismissed. Pie too had a dual purpose, the retention of his job as trainee and the attainment of the new position of patent attorney. The district court held that “since a condition to fulfillment of [the] second purpose, promotion to the job of patent attorney, was successful completion of the term as patent trainee, retention of his job was his most immediate and pressing, hence primary purpose.” 238 F. Supp. at 354; emphasis in original.

The “successful completion of the term as patent trainee,” of which the district court spoke, is synonymous with successful completion of the educational training program. It would be strange indeed if the “primary” purpose of education were its own completion or the retention of a temporary employment which, by its nature comes to an end upon completion of the education. The student waiter in the college eating hall, who holds a job open only to undergraduates, does not pursue his education for the primary purpose of keeping that job.

The retention of the job as trainee is the first objective only in time, and not the primary objective. Williams is unacceptable for setting a rule which ascribes primary purpose to the retention of the position as trainee merely because “successful completion of the term as patent trainee” is a condition for promotion to the job of patent attorney.

The district court in Williams felt that its decision was required by the decision of the Second Circuit in Marlor v. Commissioner, 251 F. 2d 615 (1958). In Marlor, a university tutor sought to deduct the costs of graduate studies. The case for deductibility was that he had a one-year employment contract, renewable only if he made progress towards a doctorate by pursuing his graduate education. The case for nondeductibility was that on completion of the studies, he would qualify for promotion to the permanent rank of instructor. The Tax Court held the expenditures nondeductible, and the 'Second Circuit reversed, in an opinion per curiam relying upon the dissenting opinion of Judge Naum below (27 T.C. 624) and Hill v. Commissioner, 181 F. 2d 906 (4th Cir., 1950). Neither Judge Raum’s opinion, nor the opinion in Hill, nor the decision on the facts in Marlor supports the result in Williams.

Judge Raum’s opinion was that retention of the employment as a tutor, by pursuit of the studies required for reemployment, was the taxpayer’s “much more immediate objective” and therefore necessary to earn his income. Hill v. Commissioner, supra, cited by Judge Raum as well as by the Second Circuit in approving his opinion, is one of a number of cases holding that teachers may deduct the costs of studies undertaken to fulfill a condition for continuation of their teaching employment. See United States v. Michaelsen, 313 F. 2d 668 (9th Cir., 1963); Devereaux v. Commissioner, 292 F. 2d 637 (3d Cir., 1961).

The rationale for deductibility in these cases, Marlor included, is that the teachers involved are acting throughout as teachers; their primary intention is to continue in their existing profession and employment and they take university courses in order to do so. Any purpose to qualify for salary increases or promotion is incidental and secondary.

A fundamental difference therefore distinguishes the situation of the teachers in these cases and that of the patent trainee in Dr. Kombach’s circumstances. The teacher, already a teacher, faces repeated, sometimes indefinite contract renewals conditioned upon graduate study. On specified progress in his studies, he gets a raise or a promotion in rank. Out of a desire to remain in his profession and continue in his job, he undertakes the required study. Betention of his employment is to him far more important than the raise or promotion.

Dr. Bombach, on the other hand, had left a job as research chemist and entered into an arrangement whose objective was to educate him for a new profession, law, and a new position, patent attorney. He would serve temporarily as a trainee, while pursuing the education. His employment as trainee would end with completion of training and promotion, the culmination of the program. For Dr. Bombach and the other patent trainees in his situation, therefore, promotion was the thing. Unlike the teacher, the patent trainee has no profession or permanent employment in which to remain, and no wish to prolong his temporary employment as trainee. Be-tention of the job as patent trainee is for him an incidental— a necessary and temporary preliminary to the promotion to patent attorney. The cases of the teachers thus do not point towards deductibility in Dr. Bombach’s case. If anything, the teachers’ cases, based on their intention to continue as teachers, confirm by contrast that since Dr. Bombach had no permanent employment and did not intend to continue as a patent trainee, retention of that position was not his primary purpose.

Another illuminating group of cases concerns the deducti-bility of the costs of law school attendance by accountants, internal revenue agents and others. Where it is found that the primary purpose of the taxpayer was to continue in his existing work, with skills improved by training, he is held able to deduct the expense. The result is otherwise, where it appears that the primary purpose in obtaining the legal education was to practice law or to obtain a new position.

The conclusion that Dr. Bombach’s primary purpose was the promotion to patent attorney is reached on the facts of his case, and it is consistent with the cited decisions in the Third Circuit and the Tax Court in cases of other such patent trainees. This conclusion, I believe, realistically attributes the primary purpose of his education to its overriding objective, and not to the mcidental retention of his temporary employment as patent trainee. The expenditures in issue are therefore not deductible, under the governing regulation.

In view of the conclusion it becomes unnecessary to decide whether that portion of the expenditures 'attributable to admission to the bar and to the cost of meals while attending law classes was as claimed by the Government not deductible in any event.

FINDINGS OF FACT

1. Plaintiffs, Louis H. Eombach and Ann M. Eombach, husband and wife, are citizens of the United States of America, residing in Wilmington, Delaware. They bring this suit to recover from the United States of America the sum of $1,216.72, plus interest, as an overpayment of federal income tax for the calendar years 1961 through 1964. The sum is the total of $273.52, $318.66, $347.12 and $277.42, alleged to be overpayments in the years 1961,1962,1963 and 1964, respectively.

•2. The action arises under the internal revenue laws of the United States and is brought pursuant to Section 1491 of Title 28 of the United States Code and Sections 6402 and 7422 of the Internal Eevenue Code of 1954. Plaintiffs have not transferred or assigned the claim upon which the suit is brought.

3. Plaintiffs timely filed joint tax returns with the District Director of Internal Eevenue at Wilmington, Delaware, for each of the years 1961 through 1964, and paid all the taxes disclosed therein. On April 16, 1965, plaintiffs timely filed with the District Director claims for refund (Form 843) of income tax for each of the years 1961 through 1964 for the above-mentioned alleged overpayments. The claims were disallowed in full, notice being sent to plaintiffs by certified mail on February 28,1966, for the claim for refund for 1961; on March 29, 1966, for the claims for refund for 1962 and 1963; and on April 15, 1966, for the claim for refund for 1964.

4. Suit was timely instituted, by the filing of a petition with this court on February 27,1968.

5. The relevant facts involve plaintiff Louis H. Eombach only. Ann M. Eombach is a party only because joint income tax returns were filed by plaintiffs for the years in question.

6. Dr. Louis H. Eombach is a chemist. He received the degree of Bachelor of Science, with a major in chemistry, in 1948 and the degree of Master of Science in organic chemistry in 1949, from Xavier University, Cincinnati, Ohio. He received the degree of Doctor of Philosophy in organic chemistry in 1953, from the University of ’Cincinnati, Cincinnati, Ohio.

7. Since September 1, 1953, Dr. Rombach has been continuously employed by E. I. du Pont de Nemours & Co. of Wilmington, Delaware (hereafter “du Pont”). During the time before July 31,1960, he was a research chemist assigned to various sections of the Research Division, also known as the Research and Development Division, of the Polychemi-cals Department.

8. The function of the Research Division was research, in the field of polychemicals, largely plastics, designed to produce technical knowledge and inventions of interest to du Pont. Its work was research in chemistry. So far as appears, the members of the Research Division were research chemists, of whom Dr. Rombach was one during the time he was a member.

9. Another division of the Polychemicals Department was the Patents and Contracts Division, whose function was the protection of the knowledge and inventions produced by the Research Division, primarily 'by the drafting and prosecution of patent applications before the United States Patent Office. The members of the Patents and Contracts Division, other than the secretarial staff and a few technical employees, were patent agents, patent attorneys, or were in the process of attending law school to become patent attorneys.

10. The manager of the division was Mr. Allan R. Plumley, a patent attorney, who has since retired. Quotations henceforth are from his testimony.

11. In about July 1960, Mr. Plumley was seeking to fill a vacancy in his division. He was looking for a man with the scientific background of the Polychemicals Department, who was skilled in reading patents and qualified to undergo the training described in the following paragraph.

12. Mr. Plumley recruited, for his division, both law school graduates with a scientific background and scientists. When he recruited scientists without legal training, he required them to train themselves, at their expense, by attending law school. He believed the skills learned in legal study to be essential to the full training and qualification of a patent attorney in his division. Pie also urged his recruits to seek admission to the bar and to fulfill the requirements of the U.S. Patent Office for the registration of patent agents before the office.

13. Mr. Plumley’s program had the approval of du Pont management and was in effect a training program for the development, for the benefit of the company, of trained patent attorneys familiar with the technology relevant to the Poly-chemicals Department.

14. Mr. Plumley interviewed Dr. Kombach, concluded he was properly qualified and offered him the opportunity to transfer to the Patents and Contracts Division.

15. In connection with the offer, Mr. Plumley advised Dr. Kombach that he would be required, at his own expense, to attend law school. As a secondary requirement, Dr. Kombach would also be expected to become a member of the bar, and to become a patent agent registered with the U.S. Patent Office.

16. No precise time limit was set for the accomplishment of these tasks, although “satisfactory progress” would be required. “Satisfactory progress” meant ultimate success within a time to be determined by Mr. Plumley.

17. While Mr. Plumley had not formulated a precise rule for the consequences of failure at law school, for lack of instances of failure, in substance failure meant that the recruit would be required to leave, without any assurance of employment elsewhere in du Pont. One recruit failed the bar examination at first, but “finally” passed. Another recruit, who failed in law school, Mr. Plumley “let go,” and the man in question went to or back to a research division. A recruit who failed might possibly remain in the Patents and Contracts Division as a technical worker, of whom there were two in the division. The rank of a technical worker was much inferior to that of the professional members of the division.

18. Dr. Kombach accepted Mr. Plumley’s offer and effective August 1,1960, was transferred to the Patents and Contracts Division.

19. Prior to his acceptance of the offer, Dr. Kombach either explicitly agreed to the conditions of his employment, stated in paragraphs 12 through 17, or, it is a fair inference from the facts, he knew of them and thereby tacitly agreed.

20. The transfer was unconditional. Dr. Kombach would have no right to transfer back to the Research Division. There was, moreover, doubt as to whether a position might be open, were he to seek to return, for the Research Division was at that time undergoing retrenchment.

21. Dr. Rombach’s decision to transfer was entirely voluntary, and represented his agreement with the suggestion made to him, by Mr. Plumley’s offer, that he could improve his usefulness to the company and thus improve himself, by becoming a patent attorney. He was neither advised nor led to believe that he would lose his job if he did not accept the transfer.

22. While Dr. Kombach was engaged in attending law school and in seeking admission to the bar and registration with the U.S. Patent Office, his job in the Patents and Contracts Division would be temporary and his position that of a trainee, who is employed only so long as he makes successful progress in his training, is discharged when he fails, and promoted to full rank when he succeeds in completing his course.

23. Dr. Rombach’s duties, when he began work in the Patents and Contracts Division, were those of a “patent chemist,” or a “helper.” As a “helper” he assisted the patent attorneys in the investigation of the patentability and economics of inventions perfected by the scientists in the Poly-chemicals Department, and in the prosecution of patent applications. While his assignments included, from the outset, actual drafting of applications or parts of applications, his work was reviewed and supervised by a patent attorney. As time went on he did more work in more final fashion and with less supervision. 'He could not independently do the professional work of the division until he had completed a law school course of study.

24. (a) Dr. Kombach’s duties in the Research Division were essentially different from his duties in the Patents and Contracts Division. They involved essentially different skills and professional abilities and were only occasionally and superficially similar.

(b) In tbe Research Division his work was directed towards research and he spent a substantial time in laboratories, conducting experiments. He worked in laboratories, as a member of the 'Patents and Contracts Division, to a far less degree, on the occasions when laboratory work was called for in a problem of the patentability of an invention. As a research chemist, he had searched the technical literature for knowledge of the problem area from the point of view of the researcher or inventor. He might make the same type of search of literature, in the Patents and Contracts Division, using of course the basic skills or ability to read and comprehend, but with the different point of view and purpose of a patent trainee assisting a patent attorney.

(c) In the Research Division, Dr. Rombach was involved in the drafting of portions of patent applications primarily or exclusively on the occasions where he was an inventor. His duties hi the Research Division did not regularly, customarily or substantially include the consideration of patent problems and the drafting of and prosecution of patent applications. These are the staples of the work of members of the Patents and Contracts Division.

(d) Dr. Rombach knew, when he accepted the offer of employment in the Patents and Contracts Division, the nature of its work and the nature of what would be his duties there.

25. Shortly after the transfer in August I960, Mr. Plumley suggested to Dr. Rombach that he enroll in the Temple University School of Law, because it was the nearest law school with a night program.

26. Dr. Rombach did so, in the following month, September 1960. He attended the four-year program in the Evening Division and was graduated in June 1964, with the degree of Bachelor of Laws. He took the courses required of all students for three years, and chose optional courses in the fourth year. His curriculum was no different from that of the average law student intending to qualify for the bar.

27. He did not take a course in patent law, either in or out of law school. A course in patent law was open to employees of the du Pont Company.

28. While attending law school, Dr. Eombach worked for a full day in the Wilmington offices of the Patents and Contracts Division, and then traveled by train or automobile to Philadelphia to attend his classes.

29. At Mr. Plumley’s request, Dr. Eombach fulfilled the requirements of the Ü.S. Patent Office and became a patent agent registered with that office, entitled in his own name to prosecute patent applications.

30. In 1962, about midway in his law school education, he registered as a law student with the State Bar Association of the State of Delaware.

31. Upon the suggestion of Mr. Plumley that he seek admission to the bar of the District of Columbia, because most patent attorneys were members of that bar, Dr. Eom-bach applied for admission in 1964.

32. In his application for admission to the bar of the District of Columbia, he stated as follows:

Q. State in a general way your plans for your future legal profession.
A. Practice corporate law in the State of Delaware.

33. In June 1964, Dr. Eombach took a bar review course in Washington, D.C. He took the bar examination in July 1964, was notified in November that he had passed, and was admitted to the bar in January 1965. He was admitted to the bar of the State of Delaware in September 1965.

34. Dr. Eombach did not on his transfer receive a company promotion, salary increase, or promise of either. Implicit in the entire arrangement, however, was the expectation that on successful completion of the training program he would become a du Pont patent attorney.

35. According to the company personnel records

(a) Dr. Eombach was a class 4 employee, intermediate chemist, in the Eesearch Division of the Polychemicals Department from 1953 to October 1, 1959, when he was promoted to class 5, senior chemist. On August 1, 1960, he was transferred to the Patents and Contracts Division, with his class and title unchanged. This state of affairs continued until August 17,1964.

(b) He had started in 1953 at a salary of $585 per month. By August 17, 1964, his salary had been increased thirteen times, in amounts ranging from $20 to $110 per month, most of them for “adj.” and “merit.” Only one of these increases was for “promotion,” an increase of $60 monthly, on October 1, 1959, on the occasion of his reclassification from class 4 to class 5.

(c) On August 17,1964, between the time he took the District of Columbia bar examination and the time he learned that he had passed, he was transferred to the Patents Division of du Pout’s central Legal Department, at the same class, class 5, with a $93 merit increase in monthly salary, to $1,300, and with the new job title of intermediate attorney. The transfer was without a change of duties and was part of a reorganization, which took place after Mr. Plumley’s retirement in April of 1964, under which the patent attorneys in the Patents and Contracts Division and their work were transferred to du Pont’s central Legal Department.

(d) On August 1, 1965, following his admission to the District of Columbia bar, his job class and job title were revised from class 5, intermediate attorney, to class 5A, patent attorney, without change in his monthly salary of $1,300.

(e) He received two more merit increases, of $80 and $85, on October 1, 1965 and April 1, 1967, and on April 1,1968, he was promoted to class 6, patent attorney, with a $100 per month promotional salary increase. He has since, on September 1,1969, received a merit increase of $135 monthly.

36. The expenses incurred by Dr. Kombaeh in obtaining a law degree are as follows:

Tbe expenses incurred for parking, train fare, subway fare, and driving were all incurred on nonovernight trips to law school in Philadelphia, from the du Pont Company in Wilmington.

37. The expenses incurred by Dr. Rombach relating to his taking a bar review course in Washington, D.C., and being-admitted to the bar of the District of Columbia, are as follows:

Train fare__-$143. 47
Parting at depot_ 18. 75
Tuition _ 85.00
Bus and cab fares_ 20. 60
Examination fees_ 35. 00
Hotel- 59.01
Meals at $3- 104. 91
Total - 466.74

Of these expenses, the hotel expenses and the expenses for three days of meals and a small portion of the bus and cab fares were incurred on an overnight trip when Dr. Rombach was taking the bar examination. The remaining expenses were all incurred, except for tuition, while commuting to and from Washington.

38. In 1962, du Pont instituted a company-wide tuition program, under which employees could be reimbursed for tuition expenses for education designed to improve their skills in their company work. Dr. Rombach was under this program partially reimbursed for the expenses set out in paragraphs 36 and 37, in the following amounts:

1962 _$330.00
1963 _ 695.00
1964 - 385.00

These amounts were included as income in Dr. and Mrs. Rombach’s joint tax returns for the years mentioned.

ULTIMATE FINDINGS OF FACT

1. Dr. Rombach undertook to obtain a law school education and become a member of the bar, hereafter the “education,” and did so, primarily for the purpose of obtaining a new position as patent attorney.

2. Dr. Bombacb. undertook to obtain the education and did so in order to meet the minimum requirements for establishment in his intended profession as an attorney, with the specialty of patent attorney.

3. His primary purpose in undertaking the education was not the maintenance or improvement of the skills required by him in his prior employment as a research chemist or in his temporary employment as a patent chemist or patent attorney trainee in the years involved.

4. His primary purpose in undertaking the education was not to meet the express requirements of his employer as a condition to the retention of his salary, status or employment.

CONCLUSION OK LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover, and the petition is dismissed. 
      
       § 1.162-5, Bwpenses for education. — (a) Expenditures made by a taxpayer for Ms education are deductible if they are for education (including research activities) undertaken primarily for the purpose of:
      (1) Maintaining or improving skills required by the taxpayer in his employment or other trade or business, or
      (2) Meeting the express requirements of a taxpayer’s employer, or the requirements of applicable law or regulations, imposed as a condition to the retention by the taxpayer of his salary, status or employment.
      Whether or not education is of the type referred to in subparagraph (1) of this paragraph shall be determined upon the basis of all the facts of each case. If it is customary for other established members of the taxpayer’s trade or business to undertake such education, the taxpayer will ordinarily be considered to have undertaken this education for the purposes described in sub-paragraph (1) of this paragraph. Expenditures for education of the type described in subparagraph (2) of this paragraph are deductible under sub-paragraph (2) only to the extent that they are for the minimum education required by the taxpayer’s employer, or by applicable law or regulations, as a condition to the retention of the taxpayer’s salary, status, or employment. Expenditures for education other than those so required may be deductible under subparagraph (1) of this paragraph if the education meets the qualifications of subparagraph (1) of this paragraph. A taxpayer is considered to have made expenditures for education to meet the express requirements of his employer only if the requirement is imposed primarily for a bona fide business purpose of the taxpayer’s employer and not primarily for the taxpayer’s benefit. Except as provided in the last sentence of paragraph (b) of this section, in the ease of teachers, a written statement from an authorized official or school officer to the effect that the education was required as a condition to the retention of the taxpayer’s salary, status, or employment will be accepted for the purpose of meeting the requirements of this paragraph.
      (b) Expenditures made by a taxpayer for his education are not deductible if they are for education undertaken primarily for the purpose of obtaining a new position or substantial advancement in position, or primarily for the purpose of fulfilling the general educational aspirations or other personal purposes of the taxpayer. The fact that the education undertaken meets express requirements for the new position or substantial advancement in position will be an important factor indicating that the education is undertaken primarily for the purpose of obtaining such position or advancement, unless such education is required as a condition to the retention by the taxpayer of his present employment. In any event, if education is required of the taxpayer in order to meet the minimum requirements for qualification or establishment in his intended trade or business or specialty therein, the expense of such education is personal in nature and therefore is not deductible.
     
      
      
        Marlor gains no additional significance here from the circumstances that once it was decided, the Government in effect conceded the judgment it had obtained in Lamb v. United States, supra, then pending on appeal to the Second Circuit, made the refund and thereby mooted the appeal from the decision of the Tax Court. See 390 F. 2d at 157. The Government in its brief states that Lamb v. United States was settled because the amendment of the regulation was then under consideration.
     
      
      
        See Welsh v. United States, 329 F. 2d 145 (6th Cir., 1964) (IRS intelligence division agent); Weiler v. Commissioner, 707 CCH Dec. 29,989, ¶ 7389 (1970) (IRS agent) ; Milton L. Schultz, 23 T.C.M. 1372 (1964) (IRS estate tax examiner); Fortney v. Campbell, 64-1 U.S.T.C., ¶ 9489 (N.D. Tex., 1964) (IRS estate tax examiner) ; William J. Brennan, 22 T.C.M. 1222 (1963) (IRS estate tax examiner) ; Campbell v. United States, 250 F. Supp. 941 (E.D. Pa., 1966) (forensic pathologist) ; Frank Kilgannon, 24 T.C.M. 619 (1965) (accountant); Walter L. Charlton, 23 T.C.M. 520 (1964) (accountant); Donald P. Frazee, 22 T.C.M. 1086 (1963) (specialist in Air Force regulations on maintenance engineering) ; Richard M. Baum, 23 T.C.M. 206 (1964) (insurance adjuster).
     
      
      
        Condit v. Commissioner, 329 F. 2d 153 (6th Cir., 1964) (accountant); James J. Engel, 21 T.C.M. 1302 (1962) (IRS agent); Jaffe v. United States, 66-2 U.S.T.C. ¶ 9514 (S.D. Fla., 1966) (IRS agent) ; Cowan v. United States, 67-1 U.S.T.C. ¶ 9199 (S.D. Fla., 1966) (IRS agent) ; Donald Y. Morrison, 29 T.C.M. 745 (1970) (government contracts project engineer).
      
        Compare Coughlin v. Commissioner, 203 F. 2d 307 (2d Cir., 1953) with Joseph T. Booth, III, 35 T.C. 1144 (1961), respectively holding deductible and nondeduetible the expenses oí a practicing lawyer who toot tax courses. The first case Involved a tax refresher course, the second an agreement among law partners pursuant to which one of them undertook studies in order to become a tax specialist.
     