The opinion of the court was delivered by: LEVET
This is a motion by the United States for summary judgment in a tax refund action. Plaintiffs have countered with a cross motion for summary judgment.
For the purposes of its motion, the United States accepts the facts stated in the complaint, plaintiff Benjamin Ginsberg's deposition and answers to interrogatories and the medical report on his condition. These facts are as follows:
1. Benjamin Ginsberg was struck by a truck while serving in the United States Army during World War II.
2. As a result of this accident he suffered a severe injury to his left leg, which developed into chronic osteomyelitis of the left leg. He was hospitalized for several years as a result of this injury, and continued to receive medical treatment after the hospitalization ended.
3. Benjamin Ginsberg was suffering from this condition during the years 1956, 1957 and 1958. During these years he resided in The Bronx, New York, and was employed as a shoe store manager and salesman in Mt. Vernon, New York.
4. The distance between his residence and place of employment was 12 miles each way.
5. His physicians advised him against prolonged standing or walking and advised that he use an automobile to prevent future attacks or aggravation of his condition.
6. Plaintiff Benjamin Ginsberg used an automobile to commute to and from work in 1956, 1957 and 1958. His only other uses for the car were to take his family out on Sundays. In 1957 he also used the car on Sundays to commute to and from a bungalow in the country where his family was spending the summer.
7. Plaintiffs seek to deduct, as medical expenses, the automobile expenses incurred in 1956, 1957 and 1958.
Section 213 of the Internal Revenue Code of 1954 provides:
'(a) Allowance of deduction. -- There shall be allowed as a deduction the expenses paid during the taxable year, not compensated for by insurance or otherwise, for medical care * * *
'(e) Definitions. -- For purposes of this section -- '(1) The term 'medical care' means amounts paid -- '(a) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body * * * or '(B) For transportation primarily for and essential to medical care referred to in subparagraph (A).'
It may be stated that however unfortunate the plaintiff Benjamin Ginsberg may be, the cost of operating his automobile for the purposes just mentioned are not amounts paid 'for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for ...