Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 73

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          On the record before us, we reject petitioner’s assertion.                  
               Petitioner’s asserts that “At the time that TLC began                  
          sending out the [per diem] letters there was no need to ‘bolster’           
          its return reporting position” with respect to the section                  
          274(n)(1) limitation.  We find that assertion to be disingenuous.           
          That the IRS may not have been examining petitioner’s                       
          consolidated returns for the years at issue at the time TLC sent            
          out the per diem letters does not mean that petitioner and TLC              
          were unaware of the tax issues under section 274(n) that the IRS            
          might raise on audit of such returns.  In this connection, in               
          Transport Labor I the Court found the per diem letters to be a              
          self-serving attempt to bolster petitioner’s position (viz., that           
          the section 274(n)(1) limitation did not apply to the per diem              
          amounts that TLC paid to its driver-employees) in the respective            
          consolidated Forms 1120 which petitioner filed for the taxable              
          years at issue.  Id. at 198-199.  Each per diem letter was a                
          self-serving declaration sent by TLC to each trucking company               
          client, which set forth TLC’s position that each trucking company           
          client was subject to the section 274(n) limitation with respect            
          to the per diem amounts that TLC paid to each driver-employee.              
          At least certain of TLC’s trucking company clients disagreed with           
          that self-serving position of TLC.  Id. at 177.                             
               Petitioner asserts that “It was TLC’s practice and intention           
          that the trucking companies would be responsible for the Section            





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