- 34 -
On its face, the majority opinion is inadequate to support a
finding that the per diem allowances constituted employee
compensation “for services rendered”, as opposed to travel
expenses. In its summary “Findings of Fact”, see majority op.
pp. 2-5 and also the Headnote, the majority opinion repeatedly
describes the amounts in controversy as “per diem” related to
employee “trips”. Surely, “per diem” related to employee “trips”
constitutes travel expenses. The majority’s avoidance of the
word “travel”, when mentioning the per diem allowances, does not
conceal the character of the per diem allowances as travel
expenses.
No mention is made in the majority’s Findings of Fact that
the per diem allowances represent a payment “for services”. In
fact, in the majority’s brief Findings of Fact, nothing is found,
or even mentioned, as to the “purpose” or “intent” for which the
per diem allowances were paid (other than “for” employee
“trips”).2 Nothing about this opinion “speaks loudly”, see
2 In analyzing whether an intent to compensate existed, we
typically consider, among other factors: Whether there was
corporate authorization for the payment of compensation; whether
the books and records of the corporation reflected that the
payments were treated as payments of compensation; whether the
payments were reported to the recipients on Forms W-2, Wage and
Tax Statement, as wage compensation; and whether the payments
were treated as compensation on the employer’s and employees’ tax
returns as filed. See, e.g., Paula Constr. Co. v. Commissioner,
58 T.C. 1055, 1059 (1972), affd. without published opinion 474
F.2d 1345 (5th Cir. 1973); Elec. & Neon, Inc. v. Commissioner, 56
T.C. 1324, 1338-1340 (1971), affd. without published opinion 496
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