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RUWE, J., concurring: I agree with the result in this case.
However, I believe it is appropriate to elaborate on why the per
diem allowances for day trips and overnight trips are both
deductible as compensation under section 162(a)(1).
United paid its employees per diem allowances at a rate of
$1.50 per hour ($1.55 for pilots for certain portions of the
years in issue) for the number of hours on duty or on flight
assignment. United appears to have arrived at this number by
estimating the expenses that would be incurred by an employee for
one day, $36 ($37.20 for pilots for certain portions of the years
in issue), and then dividing this number by 24 hours. The expert
report relied upon by petitioner attributes most of the per diem
allowance to meal expenses. See infra p. 21. The employees were
not required to substantiate their use of the per diem
allowances, and neither United nor petitioner has any written
substantiation as to the employees’ actual use of the per diem
allowances.
1. Day Trips
The per diem allowance for day trips was to cover meal
expenses that the employees might incur during day trips.1 Meal
1In his dissenting opinion, see infra p. 38 note 3, Judge
Swift states that the day trip per diem allowances included
amounts for incidental travel expenses. The facts provide no
basis upon which to apportion any amount of the day trip per diem
allowances to incidental travel expenses, and it is very unlikely
(continued...)
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