Respondent determined deficiencies of $1,478,718, $61,867,523, $1,751,161, and $45,981,293 in petitioner’s 1983, 1984, 1986, and 1987 Federal income taxes, respectively.1 Following concessions, we must decide whether petitioner may deduct the per diem allowances paid to its flight attendants and pilots (collectively, employees) for day trips and overnight trips (as defined below). We hold it may deduct the per diem allowances as personal service compensation under section 162(a)(1).2
FINDINGS OF FACT
Most facts were stipulated. The parties’ stipulation of facts and the exhibits submitted therewith are incorporated herein by this reference. The stipulated facts are found accordingly. Petitioner is a consolidated group of corporations that files a consolidated Federal income tax return on the basis of the calendar year. Its principal office was in Elk Grove Township, Illinois, when its petition was filed. United Air Lines, Inc. (United), is an airline that provides passenger and cargo service worldwide. United was petitioner’s subsidiary during 1985, 1986, and 1987.
During the subject years, United employed approximately 12,000 flight attendants and 6,150 pilots. Each of the employees was assigned to a series of flights (pairings) that typically originated and terminated at the home base of one or more of the employees assigned to the pairing. Most of the pairings required that the employees spend one or more nights away from their home bases (overnight trips). The other pairings brought the employees back to their home bases on the day of departure (day trips).
United paid the employees compensation and benefits pursuant to collective bargaining agreements (union contracts) which it had entered into with the employees’ respective unions. Under the union contracts, United paid the employees regular compensation plus a per diem allowance. United paid each flight attendant a per diem allowance equal to $1.50 times the number of hours that he or she was on duty or on flight assignment. United initially paid the same per diem allowance to each pilot but increased the pilots’ per diem rate from $1.50 per hour to $1.55 per hour effective April 1, 1986. Neither United nor petitioner required that the employees substantiate their use of the per diem allowances, and neither United nor petitioner has any written substantiation as to the employees’ actual use of the per diem allowances.
United’s computerized system allowed it to record accurately the employees’ duty assignments. United used these records to calculate each employee’s per diem allowance. United included its payment of an employee’s per diem allowance in his or her salary check and listed the amount of the per diem allowance included in the check on the corresponding check stub. United issued to each employee a monthly report of the per diem allowances which it had paid to him or her.
On its 1985, 1986, and 1987 Federal income tax returns, petitioner claimed under section 162(a)(2) that it could deduct the per diem allowances as employee travel expenses. For 1985, United paid the employees per diem allowances totaling $35,532,698 for overnight trips and $1,867,757 for day trips. For 1986, United paid the employees per diem allowances totaling $53,867,516 for overnight trips and $2,635,763 for day trips. For 1987, United paid the employees per diem allowances totaling $59,777,494 for overnight trips and $2,918,385 for day trips. As to 1987, petitioner took into account section 274(n), as amended in 1986, and deducted only 80 percent of the per diem allowances paid during 1987. For financial accounting purposes, petitioner also reported its payment of the per diem allowances as a travel expense.
United did not withhold Federal income tax on its payment of the per diem allowances, and it neither withheld nor paid Federal Insurance Contribution Act (FICA) tax with respect to the per diem allowances. United did not report the per diem allowances as wages or nonwage compensation on the employees’ Forms W-2, Wage and Tax Statement.
OPINION
We must decide whether petitioner may deduct the per diem allowances paid to the employees. Petitioner argues it may deduct the per diem allowances as personal service compensation because they arose out of an employer/employee relationship. Respondent argues that petitioner may not deduct the per diem allowances as personal service compensation because it lacked the requisite compensatory intent at the time of payment. We agree with petitioner.
Our inquiry begins with the relevant text. Section 162(a) lets a taxpayer deduct all ordinary and necessary expenses incurred during the taxable year in carrying on a trade or business. Section 162(a)(1) includes within the ambit of section 162(a) “a reasonable allowance for salaries or other compensation for personal services actually rendered”. Payments are deductible under section 162(a)(1) to the extent they are “reasonable and * * * in fact payments purely for services.” Sec. 1.162-7(a), Income Tax Regs.
The parties agree that the per diem allowances, if paid for services, would not make any of the employees’ total compensation unreasonable. Thus, we limit our focus to the second requirement. Under that requirement, a deduction under section 162(a)(1) turns on the factual determination of whether the facts and circumstances of the case establish that the payor made the payment to the payee for services rendered. Sec. 1.162~7(a), Income Tax Regs. Whether the payor makes the payment to the payee intending to compensate him or her for services rendered is a pertinent factor to consider. See, e.g., Paula Constr. Co. v. Commissioner, 58 T.C. 1055, 1058-1059 (1972) (and the cases cited therein), affd. without published opinion 474 F.2d 1345 (5th Cir. 1973).
We conclude that United paid the per diem allowances to the employees for services rendered. We reach that conclusion from the certainty that United would not have paid the per diem allowances to the employees but for: (1) The bona fide employer/employee relationship and (2) the need to pay those allowances in order to secure the employees’ services. The presence of such a bona fide employment relationship and such a need to pay per diem allowances in order to secure personal services is enough under the facts at hand to persuade us that United paid the per diem allowances to the employees for their services. Accord Kowalski v. Commissioner, 65 T.C. 44, 52 (1975), revd. 544 F.2d 686 (3d Cir. 1976), revd. 434 U.S. 77 (1977), where we stated: “Even though we have found that the meal allowance was not intended as additional compensation, it was obviously compensatory to a trooper to the extent it paid for food which he otherwise would have had to pay for from some other source.”3 We also bear in mind, and find as a fact, that United paid the per diem allowances to the employees intending to compensate them for their personal services.
Respondent places undue emphasis on the fact that the union contracts do not specifically characterize the per diem allowances as personal service compensation. Such a characterization by the parties to the contracts is not dispositive as to the characterization of the per diem allowances for Federal income tax purposes. See Hosp. Corp. of Am. v. Commissioner, T.C. Memo. 1996-559. Nor is it dispositive that United reported the per diem allowances as travel expenses for both tax and financial accounting purposes. The bona fide employer/employee relationship that United had with the employees, coupled with their negotiations as to the specifics of the employees’ compensation package, specifics which included the payment of per diem allowances, speaks loudly towards a proper characterization of those allowances as personal service compensation. We adopt that characterization.
We conclude by noting that the parties are currently litigating in the U.S. Court of Federal Claims the issue of whether the very same per diem allowances are wages for employment tax purposes. See United Air Lines, Inc. v. United States, No. 97-173T (Fed. Cl., filed Mar. 18, 1997). Interestingly, the Government is arguing that those allowances are wages for employment tax purposes. Wages for employment tax purposes are “all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash”. Sec. 3121(a). Section 3401 defines wages in similar terms.
We hold that United may deduct the per diem allowances under section 162(a)(1) as personal service compensation. Accordingly,
Decision will be entered under Rule 155.
Reviewed by the Court.
Wells, Chabot, Gerber, Ruwe, Halpern, Foley, Vasquez, and Gale, JJ., agree with this majority opinion. Whalen, J., concurs.Respondent has determined no deficiency for 1985 because the limitations period was closed when the underlying notice of deficiency was issued. We discuss 1985 because petitioner’s deduction of the per diem allowances for that year affects petitioner’s tax liability for the subject years.
Section references are to the Internal Revenue Code in effect for the subject years. Rule references are to the Tax Court Rules of Practice and Procedure.
Moreover, as the Supreme Court noted in upholding our decision in that case, the meal allowance given to Kowalski by way of the cash payments was of a “presumptively compensatory nature”. Kowalski v. Commissioner, 434 U.S. 77, 94 (1977).