Castle, Chief Judge, Hastings, Senior Circuit Judge, and Fairchild, Circuit Judge.
Petitioners appeal from a judgment of the Tax Court which disallowed their deduction of certain educational expenses from their income for 1964. James A. Carroll (hereinafter referred to as the petitioner) was employed by the Chicago Police Department as a detective during the year in question. In his 1964 federal income tax return, he listed as a deduction $720.80 which represented his cost of enrollment in DePaul University. The course of study entered into by plaintiff was stated by him to be in preparation for entrance to law school and consisted of a major in Philosophy. The six courses in which plaintiff was enrolled included two English, two Philosophy, one History and one Political Science course.*fn1 Petitioner justified the deduction under § 162(a) of the Internal Revenue Code of 1954 (26 U.S.C. § 162(a)), as an expense "relative to improving job skills to maintain [his] position as a detective. * * *"
During 1964, the Police Department had in effect General Order No. 63-24, which encouraged policemen to attend colleges and universities by arranging their schedules of duties so as to not conflict with class schedules. Petitioner availed himself of the benefits of this order when he enrolled in DePaul University.
The Commissioner determined a deficiency based in part upon the disallowance of the claimed educational expense deduction, and petitioner sought a redetermination in the Tax Court. That Court, with five judges dissenting, sustained the Commissioner's determination that the expenses were not deductible.
§ 162(a) allows a deduction of "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, * * *." In 1967, the Commissioner revised the regulations under § 162. The Tax Court found that no deduction was allowable under either the regulations which were in effect in 1964 (promulgated in 1958) or the 1967 regulations.*fn2 In addition, the Court found that the expenses were personal under § 252, which disallows deductions for such expenses.
The first issue involves the 1958 regulations, which provide in pertinent part:
Sec. 1.162-5 Expenses for Education. -- (a) Expenditures made by a taxpayer for his education are deductible if they are for education * * * undertaken primarily for the purpose of:
(1) Maintaining or improving skills required by the taxpayer in his employment * * *
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 subparagraph (1) 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.
Under these regulations, the petitioner has the burden of proving*fn3 that his education was undertaken for the primary purpose of maintaining or improving his skills as a policeman. Petitioner attempted to meet this burden by relying on the Police Department General Order 63-24 as establishing the fact that the Department considered that his education increased his value as a policeman and, accordingly, granted him the benefits of the order. Also, according to testimony of petitioner's witnesses, the Police Department, in the past, paid the costs of college tuition of its members and the Department believed that education was beneficial to a policeman.
The Tax Court held that petitioner failed to meet his burden since the evidence offered by him "failed to establish that his primary purpose was to maintain or improve his skills as a policeman,"*fn4 and that there was direct evidence contradicting petitioner's position. This latter evidence consisted of petitioner's statement, in his initial application to DePaul, that he wished to enroll for the purpose of preparing for the profession of law, petitioner's subsequent pursual of courses which the university prescribed as prerequisites for law school, and his leaving the Police Department and entering law school in 1966.
The Tax Court's determination of whether or not petitioner's enrollment in college was for the primary purpose of improving his skills as a policeman is a factual determination based upon inference drawn by the Court from the evidence. This Court, upon review, will reverse only if such determination is clearly erroneous. Kramer v. Commissioner of Internal Revenue, 389 F.2d 236, 239 (7th Cir. 1968); Kessmar Construction Company v. Commissioner of Internal Revenue, 336 F.2d 865, 867 (9th Cir. 1964). "A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948); United States v. Singer Mfg. Co., 374 U.S. 174, 195, 83 S. Ct. 1773, 10 L. Ed. 2d 823, n. 9 (1963); Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S. Ct. 1190, 4 L. Ed. 2d 1218 (1960). Applying these ...