Boyd Gaming Corporation, F.K.A. The Boyd Group and Subsidiaries - Page 58

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               Whether an employer provides a meal to an employee for the             
          employer's convenience rests primarily on whether the meal is               
          provided to the employee for a substantial noncompensatory                  
          business reason of the employer.  See sec. 1.119-1(a)(2)(i) and             
          (ii)(e), Income Tax Regs.  Such a determination is factual, Jacob           
          v. United States, 493 F.2d 1294, 1297 (3d Cir. 1974); Olkjer v.             
          Commissioner, 32 T.C. 464, 468 (1959); sec. 1.119-1(a)(1), Income           
          Tax Regs., and petitioners bear the burden of proof, Rule 142(a);           
          Welch v. Helvering, 290 U.S. 111, 115 (1933); Caratan v.                    
          Commissioner, 442 F.2d 606, 608 (9th Cir. 1971), revg. 52 T.C.              
          960 (1969); American Pipe & Steel Corp. v. Commissioner, 243 F.2d           
          125, 126-127 (9th Cir. 1957), affg. 25 T.C. 351 (1955); Olkjer v.           
          Commissioner, supra at 468.  A substantial noncompensatory                  
          business reason requires a business nexus under which the                   
          "employee must accept * * * [the] meals * * * in order properly             
          to perform his duties."  Commissioner v. Kowalski, supra at 93              
          (quoting S. Rept. 1622, 83d Cong., 2d Sess. 190 (1954)); see also           
          Van Rosen v. Commissioner, 17 T.C. 834, 838 (1951).  That the               
          employer may characterize the meal as noncompensatory, or that              
          the employer intends that the employee receive the meal without             
          tax consequences, is of no relevance to the application of                  
          section 119.  Commissioner v. Kowalski, supra at 88-95.  The same           
          is true with respect to whether the employee could perform his or           
          her job absent the meal.  A meal need not be indispensable to an            






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