Trucker per diem question

[Roberts]

I have a client who starts his shift at 9pm, drives about 3 hours to another city delivering his 2 trailers, works on the dock for a few hours and then drives home, getting back to his home facility around 7am. Does he qualify for a per diem rate for meals and incidental expenses?

His boss and co-workers swear that as long as he documents that he took a meal break at the other city, he qualifies for half of the per diem since he's gone from one day to the next, is outside his home base and is subject to the "hours of service" limits but it's a normal 9-10 hour shift. The unpaid meal isn't a required rest.

Opinions? Seems to me he doesn't qualify, his wife doesn't trust his boss and co-workers but the husband says they SWEAR they are taking it and it passed an IRS audit. I have no clue, I don't do trucker returns except this guy....

[WhiteOleander]

I say no. He is not away from his home overnight. His tax home is at the trucking facility. not his home where he lives.

[David1980]

Meals become deductible for travel away from the tax home.

From Pub 463,

You are traveling away from home if:
Your duties require you to be away from the general area of your tax home (defined later) substantially longer than an ordinary day's work, and
You need to sleep or rest to meet the demands of your work while away from home.

and also

Example 2. You are a truck driver. You leave your terminal and return to it later the same day. You get an hour off at your turn-around point to eat. Because ou are not off to get necessary sleep and the brief time off is not an adequate rest period, you are not traveling away from home.

I don't think the fact he's going during night hours turns this into deductible meals - the shift as you mention is just a normal length shift. So I would say he's not traveling away from his tax home for longer than an ordinary day's work, and that the meals are simply non-deductible living expenses.

I wouldn't claim the deduction on a return I prepare. That said, no doubt his boss and co-workers are all claiming it and believe it's legit. There's usually someone willing to a prepare a return with whatever the taxpayer wants. He could probably ask his co-workers who did their returns and have that person do the return and claim the 1/2 per diem.

[Gretel]

As far as I know the requirement is "rest needed" and rest break taken. Having a meal surely is not enough.

[FEDUKE404]

No way

Clearly not a deductible expense.

For all intents and purposes, he is just working a long day (night). In prior employment, it was quite common for me to work a 10-hour (or more!) day when travel was involved.

What his co-workers (cf "tax experts" hairdresser or barber) tell him does not carry much weight.

The fact the tax returns of his buddies passed an IRS audit is of little significance to me. My signature would never appear on a return claiming such under the circumstances cited.

FE

[David1980]

Seems to me he doesn't qualify, his wife doesn't trust his boss and co-workers but the husband says they SWEAR they are taking it and it passed an IRS audit.

I had someone who I did not do the return for, they claimed girlfriends kids to get EIC by listing the girlfriends kids as "stepchild" on the return. I of course asked them about the relationship since it's not a common relationship - "You used to be married?" "No," "Then how are these stepchildren?" "Well, it passed an IRS audit!"

Maybe it did, maybe it didn't. Certainly an auditor is a human capable of making a mistake. What an individual auditor allowed or didn't allow on a prior return for someone doesn't really set precedent on tax law.

That's of course assuming there even was an audit - a lot of bogus deductions get through simply because the return doesn't get picked for audit. But I'm not going to prepare a return I know to be incorrect because it's not likely to get audited.

[Roberts]

I told them when we met that I couldn't imagine this passing mustard and the wife and husband both said they felt the same way. Just thought I'd check. It didn't make any sense that he would qualify but I could see how the IRS would let it go through without looking at the details of his time sheet.

For example, if you told the IRS he left on Monday, got home on Tuesday, they might let that fly. It wouldn't be a lie but it wouldn't be the complete truth. These people would never try and take a deduction they weren't allowed.

[Burke]

That's of course assuming there even was an audit - a lot of bogus deductions get through simply because the return doesn't get picked for audit. But I'm not going to prepare a return I know to be incorrect because it's not likely to get audited.

There is a great cadre of persons out there who believe if the return is "accepted" by the IRS (when filed) that everything on it is okay and has passed muster, because they were not immediately notified of anything wrong. I can't remember how many times I may have pointed out something on a prior return, and they say, "but they accepted it!"