- 17 - payments.14 For the reasons described below, we disagree with each of these arguments. 1. Employment Status of the Beech Trucking Drivers Petitioner argues that the Beech Trucking drivers were employed by ATS and not by Beech Trucking. Consequently, petitioner argues, the section 274(n) limitation should apply only to ATS and not to Beech Trucking.15 In support of this 14 Petitioner (who has consistently maintained throughout these proceedings that the truck drivers were not Beech Trucking’s employees) has not raised and we do not reach any issue as to whether the per diem payments should be deductible under sec. 162(a)(1) as personal service compensation paid by Beech Trucking to the drivers. In UAL Corp. v. Commissioner, 117 T.C. 7 (2001), the taxpayer, pursuant to a collective bargaining agreement with its employees, paid its pilots and flight attendants per diem allowances at a specified rate for each hour the employees were on duty or on flight assignment. This Court held that the taxpayer was entitled to deduct the per diem allowances as personal service compensation under sec. 162(a)(1), finding that the taxpayer would not have paid the per diem allowances to its employees but for the existence of a bona fide employer/employee relationship and the need to pay the allowances in order to secure the employees’ services. Id. at 10. Noting, among other things, the taxpayer’s negotiation of the per diem allowances as part of its employees’ compensation package, this Court found as a fact that in making the per diem payments, the taxpayer intended to compensate the employees for their personal services. Id. at 11. In the instant case, the record does not establish Beech Trucking’s intent in making the per diem payments or the manner in which the per diem allowances were determined or by whom. Moreover, unlike the per diem allowances at issue in UAL Corp. v. Commissioner, supra, the per diem allowances at issue here were computed by reference to miles dispatched rather than according to hours on duty or on travel assignment. 15 Petitioner’s argument is inconsistent with Beech Trucking’s treatment of the per diem payments on its tax returns, (continued...)Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011