Bernardus A. P. Dobbe and Klazina W. Dobbe - Page 33




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               In support of their argument, petitioners cite McDowell v.             
          Commissioner, supra.  In McDowell, the Commissioner argued that             
          the taxpayers were not entitled to exclude the cost of meals from           
          their income because they were prepared by the taxpayers from               
          food purchased at the grocery store.  In McDowell, we declined to           
          consider the Commissioner’s argument, which was raised for the              
          first time in the Commissioner’s reply brief, because there was             
          no evidence in the record as to preparation of the meals, and               
          “the rudimentary principles of equity and justice forbid our                
          consideration of this argument.”  Id.  We did not address whether           
          cash reimbursements for groceries provided under similar                    
          circumstances qualified under section 119(a) as in-kind meals.              
          We allowed the exclusion, noting there was no question that the             
          meals were furnished on the business premises of the employer-              
          corporation and the meals were provided for the convenience of              
          the employer-corporation.  Our decision in McDowell is                      
          distinguishable from this case.                                             
               Petitioners also rely on Caratan v. Commissioner, 442 F.2d             
          606 (9th Cir. 1971), revg. 52 T.C. 960 (1969), Johnson v.                   
          Commissioner, T.C. Memo. 1985-175, and J. Grant Farms, Inc. v.              
          Commissioner, T.C. Memo. 1985-174.  The sole issue in each of               
          these cases was whether the taxpayers were required to accept               
          lodging furnished to them as a condition of their employment as             
          required by section 119(a).  In each of these cases, the parties            






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