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3. Available for Emergencies
An employer furnishes a meal to an employee for a
substantial noncompensatory business reason if the employer
requires that the employee be available during meal periods to
respond to emergencies. Sec. 1.119-1(a)(2)(ii)(a), Income Tax
Regs. Critical to this factor is that: (1) Emergencies have
occurred in the employer's business during the employee's meal
period which have required the employer to call the employee back
to his or her job during the period or (2) it is reasonable for
the employer to expect that emergencies will occur in its
business during the employee's meal period which will require the
employer to call the employee back to his or her job during the
period in order to respond to the emergency. Sec.
1.119-1(a)(2)(ii)(a), Income Tax Regs.; see also Jacob v. United
States, 493 F.2d at 1298. The mere fact that corporate policy
requires an employee to remain on the premises during meal breaks
does not necessarily mean that a meal provided by the employer is
provided for a noncompensatory business reason of the employer.
See Commissioner v. Kowalski, 434 U.S. at 93 (quoting S. Rept.
1622, 83d Cong., 2d Sess. 190 (1954)) (meals are excludable only
if the "employee must accept * * * [the] meals * * * in order
properly to perform his duties"); Caratan v. Commissioner, 442
F.2d at 609 n.4; see also sec. 1.119-1(a)(2)(i), Income Tax Regs.
(section 119 excludes from gross income the value of lodging that
an employee must occupy on the premises only when the lodging is
"required * * * as a condition of his employment").
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