Per Diem Clarification

[RayT]

Client is employed by a rail road (BNSF). His job is in maintenance and he is, at times, required to be on a maintenance train for several weeks at a time. The company provides lodging, but he must provide his own meals & incidentals. He is paid $25.00 per day (per diem) to cover his meals & incidentals. He is subject to DOT rules. In addition, he is occasionally on assignments that allow him to return home each night but, due to the nature of the assignment, he is paid $25.00 per day (per diem) to cover meals & incidentals. There is no requirement for accountability as to how he spends the per diem and no per diem is included in wages on his W-2. This is all in accordance with union agreements. I believe the per diem rate paid ($25.00) is less than the per diem rate authorized for employees under DOT rules ($52.00).

Question: Can the employee claim the maximum per diem rate allowed of $52.00 on Form 2106, and indicate employer payment of $25.00, thereby resulting in a deduction of $27.00 per day carried to Schedule A?

Question: Is any deduction for Meals & Incidentals calculated on Form 2106 reduced to 80% prior to posting on Schedule A?

[AJsTax]

He can use a log to figure the days he was out overnight or long enough to require a break, times the $52 rate, if that is the correct rate at that time. Then on the line for reimbursements received enter 100% of the per diem reimbursed by the employer for the entire year. Not just for the overnight stays.
yes, will be reduced to 80% on the 2106 and then another 2% of AGI reduced on the Sch A.

[Gretel]

...and, correct me if I am wrong, if he received more from his employer than his actual per diem for overnight is, he has to include in income that amount.

[Davc]

...and, correct me if I am wrong, if he received more from his employer than his actual per diem for overnight is, he has to include in income that amount.

And it will flow that way from the 2106.

And we all need to remember that another requirement to use the TW rate is that the person's work. "Regularly requires them to travel away from home and, during any single trip, usually involves travel to areas eligible for different standard meal allowance rates."