If a client is a truck driver and leaves his home at 1 am and drives over 6 hours one way and makes it back home around 6 pm (about 17 hours) would he possibly be considered overnight travel for a per diem deduction for meals and entertainment?
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Yes
The wording is something to the effect of a trip that would normally require sleep. I know I would require sleep on that trip so I say yes take a per diem. -
Adjustment for first and last day of travel
TTB pg 8-13 has a paragraph on travel for the first and last days. You have to reduce the per diem rate or prorate actual (somehow).
I had a new client, trucker self-employed, was going to another preparer. Guy was audited for his meals on the prior return. He told the preparer how many days he was gone, preparer used per diem rates. During audit, IRS found that he was gone long days but was home every night. IRS made an adjustment for the number of hours he was not working (ie 8 hrs). The remaining hours of the day (16 hrs) had to be adjusted for the rule of travel on first and last day. ( it did not come out exactly like that but just a simple example, the acutal per diem allowed ending up being less than the simple example. so the IRS must have made other adjustments) Trucker was not happy with previous preparer. I still do his return and take no per diem unless he is gone 24+ hours.
I know we all have different opinions of how to interpret some items, but I don't take meals for a trucker that is not gone any overnights. The rule is to adjust for the first and last day. How can you have a first and last day when they are not gone 24hrs?
Some people might take it, but I don't.Comment
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Since he is not gone overnight and has no lodging expense, I would not allow him
per diem for meals.Comment
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No lodging?
They almost never have lodging expense, so that is not a relative factor.Originally posted by dyne View Post
The rules state that they are gone long enough to require a rest break. need to read the qualifications closely.
I believe this individual would qualify for some b/c he is out over 10 hours , which is when he has to stop for a break. It would have to be a partial rate though, taking into consideration the requirement to cut 1/4 off first and last day of trip. so he should get 50 0r 75% of the standard rate for transportation workers. That rate is higher than the normal.AJ, EAComment
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Another questions comes to my mind. Is the truck parked at his home? If not, where is the terminal? Time for going to terminal doesn't count.Comment
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Durng my 30 years with IRS as a Tax Auditor and later Agent, I NEVER allowed this,
so you know what the IRS position was and probably still is.
The TTB says on page 8-11 .."requires the taxpayer to be away substantially longer
than an ordinary day's work.." to qualify. That IS his ordinary days work. Also it
says..."as long as relief from duty is long enough to get necessary sleep or rest..."
My understanding is that he is not doing that. In my mind there is No question that this
is NOT allowable. That is my opinion. Comments? I am NOT always right!Comment
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More info...
It's the company truck and parked at his home.....he only takes it to the terminal for maintenance every so often.Originally posted by Gretel View Post
Is "an" ordinary day's work, his ordinary day's work, or based on an average 40 hour work week?Originally posted by dyne View Post
Lodging isn't an issue. He makes it home eventually and sleeps in his truck when DOT requirements require him to stop.Originally posted by dyne View Post
Hmmmmm.....any other thoughts? Thanks for everyone's comment here....I'll keep checking in...I really appreciate it!Comment
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The number suggest
that he is getting at least a 5 hour break from driving. That is long enough for rest. He would not be allowed to legally make the trip without a break.
a normal days work sure is not 17 hours.
Just my opinion from the other side. I believe you can make a case for it.
the final decision is up to the taxpayer.AJ, EAComment
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