Beech Trucking Company, Inc., Arthur Beech, Tax Matters Person - Page 29




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          (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...)           




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