636 F.2d 1106
81-1 USTC  P 9206
Barry D. and Sandra J. PEVSNER, Petitioners-Appellees,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 80-1096

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Unit A
Jan. 9, 1981.Dissenting Opinion Jan. 26, 1981.
Appeal from the Tax Court of the United States.
M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Acting Chief, Appellate Section, Daniel F. Ross, John A. Dudeck, Jr., Attys., Tax Div., Dept. of Justice, Washington, D. C., for respondent-appellant.
Samuel R. Miller, Dallas, Tex., for petitioners-appellees.
Before AINSWORTH, GARZA and SAM D. JOHNSON, Circuit Judges.
PER CURIAM:


1
A member of the Court in active service having requested a poll on the reconsideration of this cause en banc, and a majority of the judges in active service not having voted in favor of it, rehearing en banc is DENIED.  5 Cir., 628 F.2d 467.


2
FAY, Circuit Judge, with whom JAMES C. HILL, Circuit Judge, joins, dissenting.


3
The sole issue in this case is whether Mrs. Pevsner incurred ordinary and necessary business expenses.  The Commissioner concedes that Mrs. Pevsner was required to purchase and wear the YSL clothes and accessories in her work and that she never used such apparel outside her work.  In applying the tests of Donnelly1, the panel decides that an objective, rather than subjective, standard must be applied.  In my opinion this begs the entire question surrounding "business expenses" as allowed by our income tax laws.


4
Mrs. Pevsner was required to purchase designer clothes the cost of which far exceeded anything she would have used as dress for any activities other than her work.  Because there are members of our society who wear such and because these clothes are "adaptable to general use as ordinary streetwear", taxpayer is denied a business expense.  If the panel opinion stands, no taxpayer purchasing clothes, costumes, uniforms or other apparel which are "adaptable to general use as ordinary streetwear" will be allowed a business expense deduction regardless of the absolute necessity of purchasing such for use at work and the total absence of any use elsewhere.  One need only walk down the streets of any city in America to know that such a test probably includes every piece of clothing manufactured.


5
Under the panel opinion it will not matter that the bus driver's pants have a stripe down the side nor that the elevator operator's shirt has epaulets.  Other more extreme examples, particularly those dealing with professional entertainers, would only highlight the ramifications of this holding.


6
Because I feel this result is contrary to the law, contrary to the authorities cited by the Tax Court in upholding the deduction, and contrary to common sense, I respectfully dissent from the refusal of our Court to consider the matter en banc.



1
 Donnelly v. Commissioner, 262 F.2d 411 (2nd Cir. 1959)


