"Up to the federal rate" is not a complicated phrase...
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The federal rate. The federal rate can be figured using any one of the following methods. - For per diem amounts:
- The regular federal per diem rate.
- The standard meal allowance.
- The high-low rate.
- For car expenses:
- The standard mileage rate.
- A fixed and variable rate (FAVR)
For per diem amounts, use the rate in effect for the area where you stop for sleep or rest. Regular federal per diem rate. The regular federal per diem rate is the highest amount that the federal government will pay to its employees for lodging, meals, and incidental expenses (or meals and incidental expenses only) while they are traveling away from home in a particular area. The rates are different for different locations. Your employer should have these rates available. (Employers can get Publication 1542, which gives the rates in the continental United States for the current year. Publication 1542 is available on the Internet at www.irs.gov.)
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Tables 3&4 of Publication 1542 have a boatload of different rates for different localities, anywhere from $39 to $64. We don't tend to use those, but we could. Or, under high/low (Tables 1&2), the rates would be $45 and $58. We don't tend to use those either, but we could. We tend to use the middle option, the standard meal allowance, which also can have a great number of variables, since it uses the same Tables 3&4.
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Amount of standard meal allowance. The standard meal allowance is the federal M&IE rate. For travel in 2008, the rate for most small localities in the United States is $39 a day from January 1, 2008, through December 31, 2008. Most major cities and many other localities in the United States are designated as high-cost areas, qualifying for higher standard meal allowances. These rates are listed in Publication 1542, which is available on the Internet at www.irs.gov.
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(Note once again - "The federal M&IE rate," not 80% of the federal M&IE rate.) If we prefer not to use the tables for this method, we can (as in, have the
option to) take out most variables by using a single standardized rate. This is what most of us tend to do and this is where the $52 figure shows up.
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Special rate for transportation workers. You can use a special standard meal allowance if you work in the transportation industry. You are in the transportation industry if your work: - Directly involves moving people or goods by airplane, barge, bus, ship, train, or truck, and
- Regularly requires you to travel away from home and, during any single trip, usually involves travel to areas eligible for different standard meal allowance rates.
If this applies to you, you can claim a standard meal allowance of $52 a day ($58 for travel outside the continental United States) from January 1, 2008, through December 31, 2008. Using the special rate for transportation workers eliminates the need for you to determine the standard meal allowance for every area where you stop for sleep or rest. If you choose to use the special rate for any trip, you must use the special rate (and not use the regular standard meal allowance rates) for all trips you take that year.
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"Standard meal allowance of $52 a day," in plain English. No mention of 80% of $52 a day. Why? Because the 50% rule only applies to expenses being
deducted. You can't deduct any expenses that have already been reimbursed (aka "have your cake and eat it too"), and per diem pay is a method of reimbursement.
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Originally Posted by Rev
Your employer knows exactly what your deduction is. It's 80% of $52, or $41.60 per day. Since they are over paying by $11.40 per day, that $11.40 should be appearing in box 1, and the $41.60 should be in box 12. What deductions you have above and beyond the meal expense allowance have no bearing on your employer at all (unless they also reimbursed you for them).
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If they give me 10 cents a mile in per diem pay, then I can drive 520 miles a day before exceeding the federal rate. Maybe I drive 600 miles a day Monday-Friday and take weekends off at home. Then I've been overpaid by $8 a day and I'm required to repay the difference. Nothing goes on my W-2 if I repay the money, but $8 per day goes in Box 1 and $52 per day goes in Box 12, code L if I fail to repay it...
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Allowance more than the federal rate. If your allowance is more than the federal rate, your employer must include the allowance amount up to the federal rate in box 12 of your Form W-2. This amount is not taxable. However, the excess allowance will be included in box 1 of your Form W-2. You must report this part of your allowance as if it were wage income.
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Maybe they pay me $52 a day but I spend most of my nights in high cost areas where the federal rate is more than $52. Then none of my per diem pay has to be reported anywhere on my W-2 and I can still deduct the difference. This is the very straightforward part of the publication that you apparently refuse to acknowledge...
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Allowance less than or equal to the federal rate. If your allowance is less than or equal to the federal rate, the allowance will not be included in box 1 of your Form W-2. You do not need to report the related expenses or the allowance on your return if your expenses are equal to or less than the allowance. However, if your actual expenses are more than your allowance, you can complete Form 2106 and deduct the excess amount on Schedule A (Form 1040). If you are using actual expenses, you must be able to prove to the IRS the total amount of your expenses and reimbursements for the entire year. If you are using the standard meal allowance or the standard mileage rate, you do not have to prove that amount.
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Maybe they pay me $26 a day but I only spend half my days away from home. At the end of the year, it looks like I had my allowable $52 per day. Technically though, I should be taxed on the full $26 for days that I wasn't on the road. I would also have a deduction for the excess $15.60 ($52 x 80% = $41.60 allowed, then reduced by the $26 that I already got) in expenses for days that I was on the road.
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Example. Your employer sends you on a 5-day business trip to Phoenix in March 2008 and gives you a $400 ($80 × 5 days) advance to cover your meals and incidental expenses. The federal per diem for meals and incidental expenses for Phoenix is $59. Your trip lasts only 3 days. Under your employer's accountable plan, you must return the $160 ($80 × 2 days) advance for the 2 days you did not travel. For the 3 days you did travel you do not have to return the $63 difference between the allowance you received and the federal rate for Phoenix (($80 − $59) × 3 days). However, the $63 will be reported on your Form W-2 as wages.
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Companies get into trouble when they routinely overpay people and have no mechanism in place to track or recover the overpayments. Since only an amount up to the federal rate can be considered as substantiated by the per diem method, you would have to provide actual receipts to justify higher amounts. When they have no receipts to justify the overpayments and no consistent method for recovering overpayments, the plan is nonaccountable and every dollar, not just the excess, is 100% taxable as income.