- 29 - (hereinafter referred to as the specified Federal M&IE rate).20 Among the five factors enumerated in section 4.02 of the Revenue Procedures that may trigger this consequence, the fifth factor is the focus of the dispute here. It requires a per diem allowance to be treated as paid only for M&IE if “the allowance is computed on a basis similar to that used in computing the employee’s wages or other compensation (e.g., the number of hours worked, miles traveled, or pieces produced).” Rev. Proc. 96-28, sec. 4.02, 1996-1 C.B. at 688. (Hereinafter, this provision is sometimes referred to simply as the fifth factor.) On brief, petitioner suggests that the fifth factor is invalid because it conflicts with certain regulations under section 62(a)(2), regarding the treatment to employees of reimbursed expenses under so-called accountable plans.21 20 Under the Revenue Procedures, the Federal per diem rate for the locality of travel is the amount set forth in the Federal Travel Regulations, as contained in 41 C.F.R., ch. 301, app. A, as amended. See Rev. Proc. 96-28, sec. 3.02, 1996-1 C.B. at 687. The Federal Travel Regulations, as in effect for the years at issue, provide various M&IE rates (ranging from $26 to $38) for over 800 specified localities in the continental United States; all other locations in the continental United States are subject to the lowest M&IE rate of $26. See 41 C.F.R., ch. 301., app. A (1996). As previously noted, under the simplifying convention of sec. 4.04(2) of the Revenue Procedures, a qualifying taxpayer in the transportation industry may treat $32 as the Federal M&IE rate for all localities of travel in the continental United States. 21 Sec. 62(a)(2)(A) permits favorable tax treatment (e.g., exclusion from the employee’s gross income and exemption from withholding requirements and the payment of employment tax) with respect to reimbursements of business expenses that payors make (continued...)Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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