- 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 Next
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