UAL Corporation and Subsidiaries - Page 9




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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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