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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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