UAL Corporation and Subsidiaries - Page 22




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          deems $14 substantiated for purposes of meals, while a much                 
          greater amount of the per diem allowance in the instant case was            
          based on meals and only a small fraction of the overall allowance           
          was attributable to incidental expenses.                                    
               On the basis of these facts, how could United’s payment of             
          $36, or $37.20, be reasonable when Rev. Rul. 84-164, supra,                 
          treats meals as substantiated only to the extent of $14 and                 
          petitioner’s own expert report attributed, at most, between $4              
          and $7 to incidental expenses?  Allowing petitioner to deduct the           
          full allowance under the authority of Rev. Rul. 80-62, supra, in            
          these circumstances conflicts with the overall function of the              
          deemed substantiation methods.  In Am. Airlines, Inc. v. United             
          States, 204 F.3d at 1111, the Court of Appeals for the Federal              
          Circuit commented on this conflict:                                         
                    American argues that even if it cannot meet the                   
               substantiation requirements of � 274(d), American’s                    
               covered meals and incidental expenses allowance of $36                 
               per day fall in the middle range of the $14 meals-only                 
               safe harbor of Rev. Rul. 84-164 and the $44 full per                   
               diem safe harbor of Rev. Rul. 80-62 1980-1 C.B. 63,                    
               and, therefore, American’s $36 per diem allowance                      
               should be deemed substantiated for � 274 purposes.  We                 
               agree with the Government that American’s reasoning is                 
               flawed because it ignores the fact that the deemed                     
               substantiated limit under Rev. Rul. 80-62 includes                     
               lodging, which accounts for a greater portion of an                    
               employee’s daily expenses.  Further, under American’s                  
               logic, $22 of this amount would include incidental                     
               expenses, and the burden is upon American to prove that                
               such an amount would meet the “ordinary and necessary”                 
               requirement of I.R.C. � 162.                                           








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