UAL Corporation and Subsidiaries - Page 43




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          Judicially Created Loophole                                                 
               The majority opinion appears to create a broad loophole for            
          corporations and would circumvent Congress' intent with regard to           
          the substantiation requirements of section 274(d).                          
               The opinion appears to allow expenses that would be                    
          disallowed under section 274(d) to be recharacterized as                    
          deductible compensation, provided the expenses are paid by an               
          employer to an employee in the context of any employment                    
          relationship.  See majority op. p. 6, where the “but for”                   
          analysis is set forth.  Because corporations generally have                 
          periods of limitation held open longer than individuals, the                
          opinion would allow corporations on their tax returns to treat              
          expenses as travel expenses and to avoid income and employment              
          tax withholdings thereon.  After the periods of limitations have            
          expired for the employees, the corporations could recharacterize            
          the travel expenses as compensation.  The corporations would                
          obtain an income tax deduction for the recharacterized                      
          compensation, but the employees would avoid income and employment           
          taxes on the compensation.                                                  
               The majority opinion erroneously relies on Commissioner v.             
          Kowalski, 434 U.S. 77 (1977), in which the Supreme Court held               
          that cash meal allowances provided to a State trooper were to be            
          included in the trooper’s gross income.  The meal allowances were           
          not claimed as travel expenses, and substantiation of the                   






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