- 43 - 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 thePage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
Last modified: May 25, 2011