- 45 -45
However, the taxpayer in that case claimed that it was not the
employer of those truck drivers and that therefore it was not
subject to the section 274(n)(1) limitation. As a result, a
threshold question in Beech Trucking Co. v. Commissioner, supra,
was whether the taxpayer was the employer of such truck
drivers.37 If the taxpayer in Beech Trucking Co. was the em-
ployer of the truck drivers in question, the taxpayer, as such
employer, necessarily would have borne the food or beverage
expenditures that those truck drivers made. If the taxpayer in
Beech Trucking Co. was not the employer of the truck drivers in
question, the taxpayer necessarily would not have borne such
expenditures. See Beech Trucking Co. v. Commissioner, supra at
440, 443; sec. 1.274-2(f)(2)(iv)(a), Income Tax Regs.
In the instant case, the parties agree and/or do not dispute
that: (1) No driver-employee is an independent contractor but
each is an employee who performed services for a person who is an
employer; (2) while traveling away from home, each driver-em-
ployee paid or incurred food and beverage expenses in connection
37Having decided as a threshold matter that the taxpayer in
Beech Trucking Co. v. Commissioner, 118 T.C. 428 (2002), was the
employer of the truck drivers in question, the Court addressed
the central question presented in that case of whether Rev. Proc.
94-77, 1994-2 C.B. 825, and Rev. Proc. 96-28, 1996-1 C.B. 686,
were valid in characterizing the employer-taxpayer’s payments of
the per diem amounts at issue in Beech Trucking Co. as payments
only for food and beverage expenses, and not for lodging ex-
penses, and in applying the section 274(n)(1) limitation to the
entire amounts of such payments.
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