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the Federal M&IE rate for the locality of travel. This Court
held that under section 4.03 of Rev. Proc. 96-28, supra, the
taxpayer was entitled to a portion of the claimed deductions, as
limited by applying the incidental expense portions of the
applicable Federal M&IE rates. Johnson v. Commissioner, supra at
216-217.
Unlike the case at hand, Johnson did not address the payment
of a per diem allowance, the tax treatment of the payment to the
payor, the deemed substantiation of such a per diem payment under
the applicable Revenue Procedures, the validity or application of
section 4.02 or 6.05 of the Revenue Procedures, or the
application of section 274(n) to such a per diem payment. In
Johnson, the taxpayer-employee incurred no meals or lodging
expenses. Consequently, the section 274(n) limitation was
inapplicable.32
In the instant case, by contrast, petitioner seeks to deduct
per diem payments intended to cover, without differentiation, all
otherwise unreimbursed travel expenses, including meals. To the
extent that the per diem allowances represent reimbursements of
32 In Johnson v. Commissioner, 115 T.C. at 215-216, the
taxpayer deducted incidental expenses, as determined using the
full Federal per diem rate, after applying the 50-percent
limitation of sec. 274(n). In a footnote, the Court indicated
that the sec. 274(n) 50-percent disallowance did not apply to the
taxpayer’s deduction at this rate. Id. at 227 n.10. The Court
did not expressly address the application of those portions of
the applicable revenue procedure that pertain to the application
of sec. 274(n).
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