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adversely affected by the amount of the upper limit per se but
only by the characterization of the reimbursed travel expenses as
being for M&IE.
In this latter regard, we do not believe that section 4.02
of the Revenue Procedures reflects an arbitrary or unlawful
exercise of the Commissioner’s authority in treating a maximum
per diem allowance that is approximately equal to the Federal
M&IE rate as reimbursing no more than M&IE expenses, particularly
where, as here, actual per diem reimbursements are less than the
amount computed at the Federal M&IE rate.25
Similarly, we do not believe that the complained-of
conditions contained in section 6.05 of the Revenue Procedures,
as applied to this case, are arbitrary or unlawful.26 The effect
of section 6.05 of the Revenue Procedures, as applied here, is
effectively to treat the subject per diem payments as covering
solely meal expenses in circumstances where, as just discussed,
the reimbursements were less than the amount computed at the
Federal M&IE rates and, in all likelihood, less than the amount
computed by reference to the portion of the Federal M&IE rate
25 This case does not present, and we do not consider, any
issue as to whether the complained-of conditions of sec. 4.02 of
the Revenue Procedures are valid as applied to per diem payments
that exceed the Federal M&IE rate.
26 This case does not present, and we do not consider, any
issue as to whether this aspect of sec. 6.05 of the Revenue
Procedures is valid as applied to per diem payments that
approximate or exceed the Federal M&IE rate.
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