UAL Corporation and Subsidiaries - Page 23




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               The facts at hand present a challenging question because               
          petitioner does not fit within either of the revenue rulings.               
          Respondent recognizes the potential discontinuity of coverage               
          between the two rulings and suggests that the resolution should             
          be that there is no revenue ruling explicitly in force which                
          covers the instant case.  In my opinion, the inapplicability of             
          Rev. Rul. 84-164, 1984-2 C.B. 63, as recognized in Murphy v.                
          Commissioner, supra, combined with petitioner’s failure to prove            
          entitlement to the deemed substantiation amount in Rev. Rul. 80-            
          62, 1980-1 C.B. 63, precludes the applicability of either ruling.           
          It follows that the allowances are not deductible by petitioner             
          as “travel” expenses.                                                       
               The issue thus becomes whether petitioner is entitled to               
          deduct the per diem allowances as compensation.  In this regard,            
          respondent’s sole argument is that petitioner is not entitled to            
          a deduction under section 162(a)(1) because United did not intend           
          to compensate its employees for personal services rendered when             
          it paid the employees per diem allowances.  However, as noted               
          earlier, intent is a pertinent factor to consider, not a                    
          prerequisite to deductibility under section 162(a)(1).  As                  
          explained previously, if the amounts paid to the employees cannot           
          be treated as travel expenses by petitioner, they should be                 
          treated as compensation to the employees.  In addition, the trial           
          judge has found that United paid the per diem allowances to the             






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