IRS affirmed 100% per diem deduction in Notice 2021-63 (12/6/2021)
Full Deduction for Business Meals
Congress used a single line on page 4871 of the Consolidated Appropriations Act, 2021 (CAA) to allow the full deduction for per diem. Section 210 of the act temporarily raised the allowance of business meals (for food or beverages provided by a restaurant) under IRC § 274(n) to 100% from 50% for tax years 2021 and 2022.
The IRS issued Notice 2021-25 on April 8, 2021 (updated by Notice 2021-63 on December 6, 2021) that explains when the temporary 100-percent deduction applies and when the 50-percent limitation continues to apply for purposes of § 274 of the Internal Revenue Code (Code), as amended by § 210 of the Taxpayer Certainty and Disaster Tax Relief Act of 2020 (Act), enacted as Division EE of the Consolidated Appropriations Act, 2021, Pub. L. No. 116- 260, 134 Stat. 1182 (December 27, 2020)
The IRS previously allowed motor carriers and self-employed truckers using the Special Transportation Industry per diem to deduct business meals at 80% under 274(n)(3). Unfortunately, Congress omitted any commentary on the interplay of 274(n)(1) and (3) in the CAA. On April 9, 2021, I called the Office of Associate Chief Counsel (Income Tax & Accounting) and obtained confirmation the temporary 100-percent deduction for business meal expenses applied to the transportation industry as well. The Associate Chief Counsel's opinion was affirmed by issuance of IRS Notice 2021-63 on December 6, 2021.
"Absolutely yes, we tried to allow as many taxpayers to use it as possible"Deena Devereux, IRS Office of Associate Chief Counsel
Internal Revenue Code Section 274
26 U.S. Code § 274 - Disallowance of certain entertainment, etc., has been revised as follows (as modified by the CAA):
(n) 100 percent of meal expenses allowed as deduction
(1) In general:
The amount allowable as a deduction under this chapter for any expense for food or beverages shall not exceed 100 percent of the amount of such expense which would (but for this paragraph) be allowable as a deduction under this chapter.
Paragraph (1) shall not apply to any expense if—
(A) such expense is described in paragraph (2), (3), (4), (7), (8), or (9) of subsection (e),
(B) in the case of an employer who pays or reimburses moving expenses of an employee, such expenses are includible in the income of the employee under section 82, or
(C) such expense is for food or beverages— (i) required by any Federal law to be provided to crew members of a commercial vessel,(ii) provided to crew members of a commercial vessel.
(D) such expense is—
(i) for food or beverages provided by a restaurant, and
(ii) paid or incurred before January 1, 2023.
(3) Special rule for individuals subject to Federal hours of service (superseded by CAA)
In the case of any expenses for food or beverages consumed while away from home (within the meaning of section 162(a)(2)) by an individual during, or incident to, the period of duty subject to the hours of service limitations of the Department of Transportation, paragraph (1) shall be applied by substituting “80 percent” for “50 percent”
Motor Carrier: A motor carrier with an effective Federal tax rate of 10% paying trucker per diem to a driver who is away from home an average 280 nights per year will save with the full deduction for per diem an additional $370 per year in 2021 and 2022.
- Fleet per diem savings per driver 2020: $2,694
- Fleet per diem savings per driver 2021 & 2022: $3,064
Owner Operator: An independent owner operator operating one-truck with an effective Federal tax rate of 18% claiming trucker per diem and averaging 280 nights away from home per year will save with the full deduction for per dieman additional $665 per year in 2021 and 2022.
- Owner operator savings 2020: $2,393
- Owner operator savings 2021 & 2022: $3,064
About Per Diem Plus
The Per Diem Plus® is the only IRS-compliant mobile application that provides automatic trucker per diem and travel-related expense tracking for drivers, motor carriers and owner operators. Per Diem Plus was designed, developed and is managed in the USA.
This article was written by Mark W. Sullivan EA, Tax Counsel for Per Diem Plus, who has over a decade of experience advising trucking companies on per diem issues. Prior to starting a private practice in 1998, Mr. Sullivan was an Internal Revenue Officer with the New York, NY, Saint Louis, MO and Washington, D.C. offices of the Internal Revenue Service. Questions? Contact Mark W. Sullivan, EA.
Copyright 2021 Per Diem Plus, LLC. Per Diem Plus proprietary software is the trademark of Per Diem Plus, LLC.®
Disclaimer: This article is for information purposes only and cannot be cited as precedent or relied upon in a tax dispute before the IRS.