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experience and information presumably available to the
Commissioner, and to the value of uniformity in
administering the national tax laws, we are unpersuaded
that the complained-of conditions imposed by section
4.02 or section 6.05 of the Revenue Procedures, as
applied in the instant case, are arbitrary or unlawful.
See United States v. Mead Corp., 533 U.S. 218, 234-235
(2000).
In this case, petitioners raised two new arguments
concerning the validity of section 4.02(5) of the revenue
procedures. First, petitioners argue that section 4.02(5)
conflicts with the 50-percent limitation of section 274(n)(1).
Petitioners argue that because the revenue procedures turns “on
the method of payment of the per diem allowance, it imposes the
limitation on deductibility for ‘food or beverage’ expenses upon
the entirety of the per diem allowance, without regard to the
nature of the expenses actually incurred by the employees.”
Respondent argues that there is no conflict between section
4.02(5) of the revenue procedures and section 274(n)(1).
Respondent correctly notes that section 4.02(5) is one of the
tests that determine whether the per diem is paid solely for
meals and incidental expenses. Only after meeting that test is
the section 274(n)(1) 50-percent limitation applied.
We agree with respondent that the per diem is paid “without
regard to the nature or amount of the expense actually incurred
by the employee.” Indeed, the drivers testified that they were
free to spend their per diem in any manner they chose. The
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