Boyd Gaming Corporation, F.K.A. The Boyd Group and Subsidiaries - Page 53

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          revenue derived from the facility equals or exceeds the direct              
          operating costs of the facility (the revenue/operating cost                 
          test).  Boyd Gaming Corp. v. Commissioner, 106 T.C. at 348; see             
          also sec. 132(e)(2); sec. 1.132-7(a), Income Tax Regs.  The                 
          parties focus mainly on the revenue/operating cost test.  So do             
          we.  For purposes of the revenue/operating cost test, an employer           
          may disregard the cost and revenue for each employee meal that              
          the employer determines reasonably is excludable from the                   
          recipient's gross income under section 119.  Sec. 1.132-7(a)(2),            
          Income Tax Regs.6  Section 119(a) excludes from the recipient's             
          gross income "the value of any meals * * * furnished to him, his            
          spouse, or any of his dependents by or on behalf of his employer            
          for the convenience of the employer, but only if * * * the meals            
          are furnished on the business premises of the employer".  Sec.              
          119(a).                                                                     
               The parties agree that section 119 allows some, but not all,           
          of petitioners' employees to exclude from gross income the value            
          of meals received from their employers.  The parties dispute                
          whether section 119 allows each of substantially all of the                 
          employees to exclude the value of the meals from gross income.              


               6 Sec. 1.132-7(a)(2), Income Tax Regs., provides:                      
               If an employer can reasonably determine the number of                  
               meals that are excludable from income by the recipient                 
               employees under section 119, the employer may, in                      
               determining whether the * * * [revenue/operating cost                  
               test] is satisfied, disregard all costs and revenues                   
               attributable to such meals provided to such employees.                 



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