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did not eat two meals because: (1) He ate twice a day in the
Cafeteria on his premises, seeing everyone who ate there, and
(2) petitioners had used a punch card system in prior years to
monitor the employees' receipt of meals, and these cards seldom
had two punches. We find this testimony unpersuasive and do not
rely on it. See Ruark v. Commissioner, 449 F.2d 311, 312 (9th
Cir. 1971), affg. per curiam T.C. Memo. 1969-48; Clark v.
Commissioner, 266 F.2d 698, 708-709 (9th Cir. 1959), affg. in
part and remanding T.C. Memo. 1957-129; Tokarski v. Commissioner,
87 T.C. 74, 77 (1986). The punch card system preceded the
subject years, and Mr. Thompson's testimony is contradicted
directly by the testimony of Messrs. Miner and Fraser. Mr. Miner
testified that his firsthand experience was that most of the
employees who were entitled to two meals ate both meals. Mr.
Fraser testified that petitioners had experienced problems with
employees taking unauthorized meals. We also do not see how Mr.
Thompson's mere presence in the Cafeteria for 2 hours at the most
could allow him to monitor effectively the number of meals eaten
there by each of the employees. In addition, Mr. Thompson
admitted at trial that he ate two meals a day in the Cafeterias
throughout the subject years, yet his job classification afforded
him only one meal.
With respect to the employees mentioned above who ate two
meals a day, we hold that the first meals are not excludable
under section 119.
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