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record indicates that Beech Trucking’s mileage-based
reimbursement formula, on average, yielded reimbursements
significantly less than the specified Federal M&IE rate (and also
less than any actual Federal M&IE rate that might otherwise be
applicable).24 As previously discussed, we have deemed the
parties to have conceded that the actual per diem payments at
issue here were less than the upper limit determined by reference
to the Federal M&IE rate. Accordingly, petitioner is not
23(...continued)
cents a mile, which would provide a maximum per diem allowance of
$32.50.” Petitioner represents that Beech Trucking’s mileage-
based method of reimbursing drivers’ travel expenses reflects
common industry practice.
24 Petitioner testified that the average length of a long
haul for a Beech Trucking driver was about 389 miles on the
outbound leg of the trip. Petitioner also testified that Beech
Trucking would try to get each trucker “out as far as we could in
the early part of the week, and then start working him back
toward the house.” The evidence indicates that the drivers would
be gone for about five nights on a typical long haul. Taken
together, this evidence indicates that the average per diem
allowance that Beech Trucking actually provided its drivers was
much less than the $32.50 maximum per diem allowance that
petitioner represents would obtain under the reimbursement
formula, based on an assumed maximum 500 miles of driving per
day. Specifically, the average outbound trip of 389 miles would
yield a per diem payment of no more than $25.29. Assuming, as
seems likely, that the return leg of the average 5-day-long haul
would entail less mileage each day than the average 389 miles
driven on the outbound trip, it seems likely that the average per
diem payments for each of the other 4 days of such a trip would
be less than $25.29. Consequently, the evidence indicates that
the average per diem payment was not only less than the $32
specified Federal M&IE rate under the Revenue Procedures, but
also less than the lowest actual Federal M&IE rate ($26), and
much less than the highest actual Federal M&IE rate ($38),
applicable to any locality of travel under the Federal Travel
Regulations. See 41 C.F.R. ch. 301, app. A (1996).
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