Marc G. Bissonnette and Lillian I. Cone - Page 21

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          the revenue procedures provides that either of the following                
          methods may be used to prorate the Federal M&IE rate:15                     
               (1) The rate may be prorated using the method                          
               prescribed by the Federal Travel Regulations. Currently                
               the Federal Travel Regulations allow three-fourths of                  
               the applicable Federal M&IE rate for each partial day                  
               during which the employee or self-employed individual                  
               is traveling away from home in connection with the                     
               performance of services as an employee or self-employed                
               individual. The same ratio may be applied to prorate                   
               the allowance for incidental expenses described in                     
               section 4.05 of this revenue procedure;[16] or                         
               (2) The rate may be prorated using any method that is                  
               consistently applied and in accordance with reasonable                 
               business practice. For example, if an employee travels                 
               away from home from 9 a.m. one day to 5 p.m. the next                  
               day, a method of proration that results in an amount                   
               equal to two times the Federal M&IE rate will be                       
               treated as being in accordance with reasonable business                
               practice (even though only one and a half times the                    
               Federal M&IE rate would be allowed under the Federal                   
               Travel Regulations).                                                   



               15 The quotation below is from Rev. Procs. 2002-63 and                 
          2003-80, supra, and differs in minor respects from the comparable           
          provisions of Rev. Procs. 2000-39 and 2001-47, supra.                       
               Pursuant to Rev. Procs. 2002-63 and 2003-80, supra, a                  
          taxpayer substantiating his M&IE expenses under sec. 4.03 of                
          those revenue procedures generally is limited to using the method           
          in sec. 6.04(1) of the revenue procedures for proration of the              
          Federal M&IE rate.  However, if sec. 4.04 of the revenue                    
          procedures applies, then either method under sec. 6.04 of the               
          revenue procedures may be used to determine the amount deemed               
          substantiated for a partial day of travel.  Petitioner is                   
          substantiating his M&IE under sec. 4.03 of the revenue                      
          procedures, and he is employed in the transportation industry as            
          defined under sec. 4.04(4) of the revenue procedures.  Therefore,           
          he may use either method.                                                   
               16 The last sentence does not appear in Rev. Proc. 2000-39,            
          sec. 6.04(1), 2000-2 C.B. at 345, or in Rev. Proc. 2001-47, sec.            
          6.04(1), 2001-2 C.B. at 337, and has no effect upon this case.              




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