- 79 - None of these arguments persuades us that the relevant employees may exclude their meals under section 119. These contentions are not substantial noncompensatory business reasons within the meaning of the regulations. Petitioners' contentions about their security concerns, their employees' uniforms, and the timing of the graveyard shift fail to go to the heart of the convenience of the employer test; namely, that the "employee must accept * * * [the] meals * * * in order properly to perform his duties".15 Commissioner v. Kowalski, 434 U.S. at 93 (quoting S. Rept. 83-1622, at 190 (1954)). Section 119 requires a closer and better documented connection between the necessities of the employer's business and the furnishing of free meals. We now turn our attention to whether each of substantially all of petitioners' employees receive meals excludable from gross income under section 119. Respondent asserts that the term "substantially all" means that at least 90 percent of the employees must be able to exclude their meals under section 119. Petitioners counter that the term requires a lower percent. 15 With respect to the uniforms and the graveyard shift, we have additional concerns. Petitioners allow their employees to travel to and from work in uniform, and employees have worn their uniforms while dining in the restaurants of petitioners' competitors. Moreover, petitioners provide their employees with dressing rooms and storage for safeguarding their nonbusiness attire, and the uniforms worn by most of the employees do not appear to be such that the employees cannot quickly change into nonbusiness attire. With respect to the graveyard shift, we are unable to determine which employees work this shift. Thus, even if we were to assume arguendo that these late night workers were entitled to exclude their meals because of the time of their shift, an assumption which we reject, we would not be able to ascertain which employees fall within this category.Page: Previous 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 Next
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