Charles A. Boyd and Darby A. Harvey - Page 11

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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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