Boyd Gaming Corporation, F.K.A. The Boyd Group and Subsidiaries - Page 79

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               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.                        


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