- 27 -
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).
Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 NextLast modified: May 25, 2011