Dave Arnett - Page 10

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          perform services in Antarctica, to pay them overtime for work               
          they performed in Antarctica.  Id. at 400.  The FLSA requires an            
          employer to pay an employee “at a rate not less than one and one-           
          half times the regular rate at which he is employed” for the                
          hours the employee works in excess of 40 hours per week.  29                
          U.S.C. sec. 207(a).  However, there are several exceptions to               
          this rule including geographical limits.  Certain provisions of             
          the FLSA, including section 207, do not apply where employee                
          services are performed within a foreign country.  29 U.S.C. sec.            
          213(f).  The court concluded that Antarctica is a foreign country           
          for purposes of the FLSA and based its conclusion on the                    
          particular language of the FLSA.  Smith v. Raytheon Co., supra at           
          401-402.                                                                    
               In the instant case, we are revisiting the same issue we               
          discussed in Martin v. Commissioner, supra.  Although the                   
          statutory and regulatory provisions discussed in Martin have been           
          modified and there have been caselaw developments since Martin,             
          these changes do not affect the conclusion that petitioner’s                
          income earned in Antarctica is subject to tax in the United                 
          States and petitioner does not qualify for the foreign earned               
          income exclusion under section 911.                                         
               Moreover, both Smith v. United States, supra, and Smith v.             
          Raytheon Co., supra, discuss the issue of whether Antarctica is a           
          foreign country within the context of statutes other than the               





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