UAL Corporation and Subsidiaries - Page 32




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          employees but because the employment tax provisions treat                   
          unsubstantiated and excess per diem travel allowances as subject            
          to employment taxes as if they were compensation).  Any                     
          disagreement with that legal interpretation should be addressed             
          on the merits, and the innuendo in the majority opinion of                  
          factual inconsistency on respondent’s part in the                           
          characterization of per diem allowances is inappropriate.                   
               The more significant concern with regard to “inconsistent”             
          characterizations in this case should be with United's efforts to           
          recharacterize entirely the per diem allowances that United, its            
          employees, and the labor unions, for all other purposes, treated            
          as employee travel expenses.1  United now, years later, and                 
          solely for Federal income tax purposes, attempts to                         
          inconsistently treat such travel expenses as employee                       
          compensation, outside the scope of the substantiation                       
          requirements of section 274(d), and fully deductible under                  
          section 162(a)(1).                                                          
               An extensive body of case law limits a taxpayer’s ability to           
          change the treatment of reported items of income and deductions.            
          See, e.g., Norwest Corp. & Subs. v. Commissioner, 111 T.C. 105,             
          146-147 (1998); LeFever v. Commissioner, 103 T.C. 525, 541-545              
          (1994), affd. 100 F.3d 778 (10th Cir. 1996).                                


               1  The parties’ stipulation of facts filed with the Court in           
          this case repeatedly acknowledges United’s specific treatment of            
          the per diem allowances as travel expenses.                                 





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