"Breaker, Breaker" Trucker per diem

[tpnl]

Taxpayer is W-2 employee. Says he sleeps in his truck in his employers parking lot and he wants to take the daily per diem. He works Monday - Friday.

He drives (with loading and unloading) a total of 14 hours a day. Taxpayer is a roundtrip driver, meaning he starts and ends at the employer terminal everyday. Taxpayer lives 54 miles from employer. For safety reasons, he sleeps in his truck so he doesn't have to spend the time driving home everynight. Taxpayer says all his buddies do it (take per diem).

I say this is not at the convenience of the employer. Any thoughts, I say no per diem.

[David1980]

Where is the taxpayer's tax home?

[tpnl]

Tax Home

Tax home is where he is sleeping, in the parking lot. This employer is a small regional trucking company that has one home base and no other locations (which I will lable location "A").

Taxpayer is driving from the starting location "A" and returning every night to location "A." Taxpayer is sleeping in the parking lot at location "A" and says driving the 54 miles to his residence home location is too far.

[David1980]

That sounds right to me. In which case the 54 miles is irrelevant. The 14 hours may or may not be.

[MAMalody]

I do not see this as qualifying for a per diem.

[ddoshan]

I do not see this as qualifying for a per diem.

I would tend to agree. I would not do the return allowing the daily meal per diem which I assume you are referring to. His situation does not seem to meet the various tests or criteria for traveling away from his tax home which would appear to be the terminal.

[David1980]

The only way I could see per diem being allowed on this one is if the 14 hour shift is long enough that "You need to sleep or rest to meet the demands of your work while away from home."

The IRS gives two examples when talking about tax home. If the facts are closer to example 1, the taxpayer would be considered to be away from home. Probably the facts are more like example 2.

Example 1.

You are a railroad conductor. You leave your home terminal on a regularly scheduled round-trip run between two cities and return home 16 hours later. During the run, you have 6 hours off at your turnaround point where you eat two meals and rent a hotel room to get necessary sleep before starting the return trip. You are considered to be away from home.

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 turnaround point to eat. Because you 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.

[jsamans]

The relevance of the 14-hour period is that final rule specifies "if more than 8 consecutive hours on duty...have passed since the last offduty (or sleeper-berth) period of at least half an hour, a driver must take a break of at least 30 minutes before driving" (Item 3) and sets a "maximum driving window...14 consecutive hours after coming on duty" (Item 4). (Note: The DOT hours-of-service rules are quite complex.)

A taxpayer travels away from his or her tax home if:
• The taxpayer needs to sleep or rest to meet the demands of work while away from home. Merely napping in a car does not meet the rest requirement. However, absence for an entire day or from dusk until dawn is not required as long as relief from duty is long enough to allow for necessary sleep and rest. (ref: TTB 8-9).

The main terminal may qualify as the tax home of the trucker for this purpose (ref: TTB 8-1), and workers subject to the DOT hours-of-service rules may deduct 80% of the Per Diem meal expense versus the usual 50% (ref: TTB 8-9).

Here's the twist: although DOT does establish a rest requirement during the 14-hour shift (in the form of the half-hour break, which does count towards the 14-hour maximum), the break not be spent resting (ref: HOS Q&A), and your client apparently goes off-shift at the end of the 14 hours. That puts your client back at his tax home in time to get necessary sleep, in which case he does not meet the IRS definition of traveling.

I do not believe that a Per Diem rate can be justified under these circumstances.