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At the outset, we note the similarities between this case
and Beech Trucking Co. v. Commissioner, 118 T.C. 428 (2002).5 In
Beech Trucking Co., the corporation took the same tax position
regarding deductibility of the per diem allowance paid to its
drivers as petitioners in this case. Five of the six
shareholders of Beech Trucking are petitioners in this case.6
Beech Trucking drivers were dispatched on both long and short
hauls. Beech Trucking trucks had sleeper berths. Beech
Trucking’s long-haul drivers earned between 24 and 26 cents per
mile in wages, which included a 6.5 cents per mile per diem
allowance. Short-haul drivers earned a flat weekly salary and an
additional 6.5 cents per mile per diem. See Beech Trucking Co.
v. Commissioner, supra at 430-432. On its Forms 1120S, U.S.
Income Tax Return for an S Corporation, for 1995 and 1996, Beech
Trucking claimed a deduction that was 80 percent of the actual
per diem allowance paid to its drivers. See id. at 432.
In Beech Trucking Co., petitioners argued unsuccessfully
5 The petitioners in Beech Trucking Co. v. Commissioner,
118 T.C. 428 (2002), moved to dismiss their appeal to the Court
of Appeals for the Eight Circuit. On Oct. 23, 2002, the Court of
Appeals granted the motion to dismiss.
6 Ed Harvey owned 26.000 percent of Beech Trucking. Ralph
Bradbury owned 16.667 percent of Beech Trucking. Diane Miller
owned .667 percent of Beech Trucking. James Willbanks owned .667
percent of Beech Trucking. Warren Garrison owned .667 percent of
Beech Trucking. Arthur Beech, the only shareholder who is not a
shareholder of Continental Express, Inc., owned 55.333 percent of
Beech Trucking. See id. at 430.
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