Beech Trucking Company, Inc., Arthur Beech, Tax Matters Person - Page 17




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          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...)           





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