B-139118, AUG. 4, 1960

B-139118: Aug 4, 1960

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MORRIS WAS PAID $11. UNDER THE PROVISIONS OF THAT ACT A DEDUCTION WAS MADE FROM THE AMOUNT OF HIS BACK PAY FOR AMOUNTS EARNED BY HIM FROM OUTSIDE SOURCES DURING THIS PERIOD. MORRIS NOW CLAIMS HE IS ENTITLED TO AN ADDITIONAL COMPENSATION PAYMENT OF $2. HE FURTHER STATES THAT THIS AMOUNT WAS ALLOWED AS A DEDUCTION FROM INCOME ON HIS INCOME TAX RETURNS BY THE INTERNAL REVENUE SERVICE FOR THE TAX YEARS INVOLVED UNDER THE PROVISIONS OF SECTION 162 OF THE INTERNAL REVENUE CODE OF 1954. SHOWS THAT A DEDUCTION WAS MADE FROM MR. WHICH ADVISES THAT THE MATTER WAS CONSIDERED BY THE TAX RULING DIVISION OF THE SERVICE WHICH HELD THAT THE EXPENDITURES FOR MEALS AND LODGING FOR THE PERIOD INVOLVED CONSTITUTE NONDEDUCTIBLE LIVING EXPENSES AT OR NEAR HIS ONLY PLACE OF BUSINESS AND.

B-139118, AUG. 4, 1960

TO THE SECRETARY OF THE ARMY:

YOUR LETTER OF MARCH 24, 1959, WITH ENCLOSURE, REQUESTS A DECISION RELATIVE TO THE CLAIM OF MR. MELVIN N. MORRIS, 392 PROSPECT PLACE, LITTLE SILVER, NEW JERSEY, AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY, FOR ADDITIONAL COMPENSATION IN THE AMOUNT OF $2,149.13.

THE RECORD SHOWS MR. MORRIS WAS PAID $11,101.99 BY THE DEPARTMENT OF THE ARMY FOR COMPENSATION FOR THE PERIOD FROM THE DATE OF HIS ERRONEOUS SEPARATION FROM THE GOVERNMENT SERVICE TO THE DATE OF RESTORATION TO DUTY UNDER THE ACT OF AUGUST 26, 1950, 5 U.S.C. 22-1. UNDER THE PROVISIONS OF THAT ACT A DEDUCTION WAS MADE FROM THE AMOUNT OF HIS BACK PAY FOR AMOUNTS EARNED BY HIM FROM OUTSIDE SOURCES DURING THIS PERIOD. MR. MORRIS NOW CLAIMS HE IS ENTITLED TO AN ADDITIONAL COMPENSATION PAYMENT OF $2,149.13 SINCE THE OUTSIDE EARNINGS DEDUCTED FROM HIS BACK PAY SHOULD BE REDUCED BY THAT AMOUNT BECAUSE IT REPRESENTS COSTS INCURRED BY HIM FOR TRAVEL, MEALS AND LODGING, AND COMMUTING EXPENSES WHILE EMPLOYED AT LOCATIONS AWAY FROM HIS RESIDENCE AT LITTLE SILVER. HE FURTHER STATES THAT THIS AMOUNT WAS ALLOWED AS A DEDUCTION FROM INCOME ON HIS INCOME TAX RETURNS BY THE INTERNAL REVENUE SERVICE FOR THE TAX YEARS INVOLVED UNDER THE PROVISIONS OF SECTION 162 OF THE INTERNAL REVENUE CODE OF 1954. A REPORT RECEIVED FROM THE INTERNAL REVENUE SERVICE DATED AUGUST 24, 1959, SHOWS THAT A DEDUCTION WAS MADE FROM MR. MORRIS' INCOME FOR THE YEARS 1956, 1957, AND 1958, FOR HIS EXPENSES INCURRED FOR TRANSPORTATION, COMMUTING EXPENSES, MEALS AND LODGING WHEN WORKING AWAY FROM HIS HOME WHILE EMPLOYED AT NEW ROCHELLE, MT. VERNON, AND NEW YORK, NEW YORK.

HOWEVER, A FURTHER REPORT HAS NOW BEEN RECEIVED FROM THE SERVICE DATED JULY 19, 1960, WHICH ADVISES THAT THE MATTER WAS CONSIDERED BY THE TAX RULING DIVISION OF THE SERVICE WHICH HELD THAT THE EXPENDITURES FOR MEALS AND LODGING FOR THE PERIOD INVOLVED CONSTITUTE NONDEDUCTIBLE LIVING EXPENSES AT OR NEAR HIS ONLY PLACE OF BUSINESS AND, ALSO, THAT THE TRANSPORTATION EXPENSES (SUBWAY AND RAILROAD FARES) CONSTITUTE NONDEDUCTIBLE COMMUTING EXPENSES INCURRED BETWEEN HIS RESIDENCE AND ONLY PLACE OF BUSINESS.

IN VIEW OF THE ACTION OF THE INTERNAL REVENUE SERVICE, WE MUST CONCLUDE THAT MR. MORRIS' OUTSIDE EARNINGS MAY NOT BE DECREASED AS A RESULT OF SUCH EXPENSES AND HE IS NOT THEREFORE, ENTITLED TO PAYMENT OF ADDITIONAL COMPENSATION IN THE AMOUNT CLAIMED.