- 25 - function, and that it had little exposure to losses associated with the Beech Trucking drivers’ work activities. By contrast, it appears that Beech Trucking bore the risks associated with operating the trucking business on which it relied to generate revenues with which to make weekly payroll reimbursements to ATS. Beech Trucking had an investment in work facilities: it operated two terminals and owned all the trucks that the drivers operated. Clearly, the drivers’ work was part of the regular business of Beech Trucking. The record is silent as to whether ATS had any separate work facilities and is unclear as to the extent of any business ATS might have had apart from the services it provided Beech Trucking. In sum, on the basis of all the evidence in the record, we conclude that Beech Trucking was the drivers’ common law employer, with respect to which ATS performed principally a driver procurement and payroll service. Cf. Profl. & Exec. Leasing, Inc. v. Commissioner, 89 T.C. at 234. Accordingly, we conclude that the section 274(n) limitation applies to Beech Trucking as the common law employer of its drivers and as the party that (as petitioner states on brief) actually bore the expense of the expenditures for which the per diem payments were made. See sec. 1.274-2(f)(2)(iv), Income TaxPage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011