UAL Corporation and Subsidiaries - Page 27




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               THORNTON, J. concurring:  The majority concludes that the              
          per diem payments are deductible on the ground that the payments            
          are compensatory in nature.  The majority does not address to               
          what extent, if any, this case implicates statutory rules (i.e.,            
          sections 162(a)(2) and 274(d)(1)) affecting the deductibility of            
          travel expenses.  Absent any clear indication to the contrary,              
          the majority opinion might be construed as indulging a suppressed           
          premise that the compensatory nature of the payments overrides or           
          renders moot the operation of rules pertaining to travel                    
          expenses.1  To that extent, the majority opinion might be                   
          susceptible to criticism such as that registered by the                     
          dissenters.  It would not appear necessary or appropriate,                  
          however, to construe any implicit premises of the majority                  
          opinion so broadly, for on the facts of this case, it appears               
          that the per diem payments do not in fact represent travel                  
          expenses.                                                                   
               The majority rightly concludes that the per diem payments              
          were compensatory in nature.  The facts also support an                     


               1 Two possible bases for such a suppressed premise suggest             
          themselves:  (1) That treatment as compensation under sec.                  
          162(a)(1) trumps treatment as travel expenses under secs.                   
          162(a)(2) and 274(d)(1)–-a proposition that seems difficult to              
          square with the statutory regime; or (2) that because the per               
          diem payments are compensatory, ipso facto they are not travel              
          expenses.  Without further explication, this latter proposition             
          might be thought to exemplify a species of the so-called “masked            
          man fallacy” (“I know who my father is; I do not know who the               
          masked man is; so, my father is not the masked man.”).                      
          Blackburn, Think:  A Compelling Introduction to Philosophy 30               
          (1999).                                                                     



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