[Federal Register Volume 63, Number 190 (Thursday, October 1, 1998)]
[Proposed Rules]
[Pages 52660-52662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26227]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 1

[REG-122488-97]
RIN 1545-AV87


Substantiation of Business Expenses--Use of Mileage Rates To 
Substantiate Automobile Expenses

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This document contains proposed regulations relating to the 
use of mileage rates to substantiate automobile business expenses. The 
regulations affect taxpayers who deduct expenses, and payors who make 
payments and employees who receive payments under reimbursement or 
other expense allowance arrangements, for the business use of an 
automobile.

DATES: Written or electronically generated comments and requests for a 
public hearing must be received by December 30, 1998.

FOR FURTHER INFORMATION CONTACT: Concerning the regulations, contact 
Edwin B. Cleverdon or Donna M. Crisalli, (202) 622-4920 (not a toll-
free number).

ADDRESSES: Send submissions to CC:DOM:CORP:R (REG-122488-97), room 
5228, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, 
Washington, DC 20044. In the alternative, submissions may be hand 
delivered between the hours of 8 a.m. and 5 p.m. to CC:DOM:CORP:R (REG-
122488-97), Courier's Desk, Internal Revenue Service, 1111 Constitution 
Avenue NW., Washington, DC. Additionally, taxpayers may submit comments 
electronically via INTERNET by selecting the ``Tax Regs'' option on the 
IRS INTERNET site at: http://www.irs.ustreas.gov/prod/tax__regs/
comments.html.

SUPPLEMENTARY INFORMATION:

Background and Explanation of Provisions

    Section 274(d) provides that a taxpayer is not allowed a deduction 
or credit for certain expenses unless the expense is substantiated. 
These substantiation requirements apply to the expenses of use of any 
listed property

[[Page 52661]]

(defined in section 280F(d)(4)), which includes any passenger 
automobile and any other property used as a means of transportation. 
The Secretary may issue regulations that provide that some or all of 
the substantiation requirements will not apply to expenses that do not 
exceed a prescribed amount.
    Section 1.274-5T(b)(6) sets forth the elements of an expenditure or 
use, i.e., the amount, time, and business purpose, that are required to 
be substantiated with respect to listed property. Section 1.274(d)-1 
provides, in part, that the Commissioner may prescribe rules under 
which mileage allowances reimbursing ordinary and necessary expenses of 
local travel and transportation while traveling away from home will 
satisfy the substantiation requirements of Sec. 1.274-5T(c), and the 
requirements of an adequate accounting to the employer for purposes of 
Sec. 1.274-5T(f)(4). However, Sec. 1.274(d)-1(a)(3) provides that such 
mileage allowances are available only to the owner of a vehicle.
    Proposed Sec. 1.274-5(g) applies these substantiation rules to 
mileage allowances for business use of an automobile without the 
limitation in Sec. 1.274(d)-1(a)(3) that a mileage allowance is 
available only to the owner of a vehicle. Proposed Sec. 1.274-5(j)(1) 
continues to authorize the Commissioner to establish a method for 
computing meal expenses while traveling away from home (see current 
Sec. 1.274-5T(j)), while Sec. 1.274-5(j)(2) authorizes the Commissioner 
to establish a method under which a taxpayer may use mileage rates to 
determine the amount of the ordinary and necessary business expenses of 
using an automobile for local transportation and transportation to, 
from, and at the destination while traveling away from home in lieu of 
substantiating the actual costs. The mileage rate method may include 
appropriate limitations and conditions in order to reflect more 
accurately automobile expenses over the entire period of usage. The 
taxpayer would not, however, be relieved of substantiating the amount 
of each business use (i.e., the business mileage) and the time and 
business purpose of each use. See Rev. Proc. 97-59 (1997-52 I.R.B. 24), 
for rules for using the mileage rate method. This proposed Sec. 1.274-
5(g), (j), and (m) supplement Sec. 1.274-5(c) and (f) as proposed on 
March 25, 1997, in the Federal Register (62 FR 14051). Conforming 
changes to Sec. 1.62-2 are also proposed.

Special Analyses

    It has been determined that this notice of proposed rulemaking is 
not a significant regulatory action as defined in EO 12866. Therefore, 
a regulatory assessment is not required. It also has been determined 
that section 553(b) of the Administrative Procedure Act (5 U.S.C. 
chapter 5) does not apply to these regulations, and, because the 
regulations do not impose a collection of information on small 
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply. Pursuant to section 7805(f) of the Internal Revenue Code, this 
notice of proposed rulemaking will be submitted to the Chief Counsel 
for Advocacy of the Small Business Administration for comment on its 
impact on small business.

Comments and Requests for a Public Hearing

    Before adopting these proposed regulations as final regulations, 
consideration will be given to any comments that are submitted timely 
(and in the manner described in the ADDRESSES portion of this preamble) 
to the IRS. All comments will be available for public inspection and 
copying. A public hearing will be scheduled and held upon request by 
any person who submits comments on the proposed rules. Notice of the 
time and place for the hearing will be published in the Federal 
Register.

Drafting Information

    The principal authors of these proposed regulations are Edwin B. 
Cleverdon and Donna M. Crisalli, Office of the Assistant Chief Counsel 
(Income Tax and Accounting). However, personnel from other offices of 
the IRS and Treasury Department participated in their development.

List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

PART 1--INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read in 
part as follows:

    Authority: 26 U.S.C. 7805 * * *

    Par. 2. In Sec. 1.62-2, paragraph (e)(2) is revised to read as 
follows:


Sec. 1.62-2  Reimbursement and other expense allowance arrangements.

* * * * *
    (e) * * *
    (2) Expenses governed by section 274(d). An arrangement that 
reimburses travel, entertainment, use of a passenger automobile or 
other listed property, or other business expenses governed by section 
274(d) meets the requirements of this paragraph (e)(2) if information 
sufficient to satisfy the substantiation requirements of section 274(d) 
and the regulations thereunder is submitted to the payor. See 
Sec. 1.274-5T. Under section 274(d), information sufficient to 
substantiate the requisite elements of each expenditure or use must be 
submitted to the payor. For example, with respect to travel away from 
home, Sec. 1.274-5T(b)(2) requires that information sufficient to 
substantiate the amount, time, place, and business purpose of the 
expense must be submitted to the payor. Similarly, with respect to use 
of a passenger automobile or other listed property, Sec. 1.274-5T(b)(6) 
requires that information sufficient to substantiate the amount, time, 
use, and business purpose of the expense must be submitted to the 
payor. See Sec. 1.274-5(g), however, which grants the Commissioner 
authority to prescribe rules permitting the amount of certain expenses 
to be deemed substantiated to the payor (in lieu of substantiating the 
actual amount of such expenses) by means of per diem or mileage rates 
for travel away from home or transportation expenses. See also 
Sec. 1.274-5(j)(1), which grants the Commissioner the authority to 
establish a method under which a taxpayer may use a specified amount 
for meals while traveling away from home in lieu of substantiating the 
actual cost of meals, and Sec. 1.274-5(j)(2), which grants the 
Commissioner the authority to establish a method under which a taxpayer 
may use mileage rates to determine the amount of the ordinary and 
necessary expenses of using an automobile for local transportation and 
transportation to, from, and at the destination while traveling away 
from home in lieu of substantiating the actual costs. Substantiation of 
the amount of a business expense in accordance with rules prescribed 
pursuant to the authority granted by Sec. 1.274-5(g) or (j) will be 
treated as substantiation of the amount of such expense for purposes of 
this section.
* * * * *


Sec. 1.62-2T  [Removed]

    Par. 3. Section 1.62-2T is removed.
    Par. 4. Section 1.274-5 is added to read as follows:


Sec. 1.274-5  Substantiation requirements.

    (a) through (f) [Reserved]. For further guidance, see Sec. 1.274-
5T(a) through (f).

[[Page 52662]]

    (g) Substantiation by reimbursement arrangements or per diem, 
mileage, and other traveling allowances--(1) In general. The 
Commissioner may, in his or her discretion, prescribe rules in 
pronouncements of general applicability under which allowances for 
expenses described in paragraph (g)(2) of this section will, if in 
accordance with reasonable business practice, be regarded as equivalent 
to substantiation by adequate records or other sufficient evidence for 
purposes of Sec. 1.274-5T(c) of the amount of such expenses and as 
satisfying, with respect to the amount of such expenses, the 
requirements of an adequate accounting to the employer for purposes of 
Sec. 1.274-5T(f)(4). If the total allowance received exceeds the 
deductible expenses paid or incurred by the employee, such excess must 
be reported as income on the employee's return. See paragraph (j)(1) of 
this section relating to the substantiation of meal expenses while 
traveling away from home, and paragraph (j)(2) of this section relating 
to the substantiation of expenses for the business use of an 
automobile.
    (2) Allowances for expenses described. An allowance for expenses is 
described in this paragraph (g)(2) if it is a--
    (i) Reimbursement arrangement covering ordinary and necessary 
expenses of traveling away from home (exclusive of transportation 
expenses to and from destination);
    (ii) Per diem allowance providing for ordinary and necessary 
expenses of traveling away from home (exclusive of transportation costs 
to and from destination); or
    (iii) Mileage allowance providing for ordinary and necessary 
expenses of local transportation and transportation to, from, and at 
the destination while traveling away from home.
    (3) Limitation. For expenses paid or incurred on or before December 
31, 1997, a mileage allowance described in paragraph (g)(2)(iii) of 
this section is available only to the owner of a vehicle.
    (h) and (i) [Reserved]. For further guidance, see Sec. 1.274-5T(h) 
and (i).
    (j) Authority for optional methods of computing certain expenses--
(1) Meal expenses while traveling away from home. The Commissioner may 
establish a method under which a taxpayer may use a specified amount or 
amounts for meals while traveling away from home in lieu of 
substantiating the actual cost of meals. The taxpayer would not be 
relieved of the requirement to substantiate the actual cost of other 
travel expenses as well as the time, place, and business purpose of the 
travel. See Sec. 1.274-5T(b)(2) and (c).
    (2) Use of mileage rates for automobile expenses. The Commissioner 
may establish a method under which a taxpayer may use mileage rates to 
determine the amount of the ordinary and necessary expenses of using an 
automobile for local transportation and transportation to, from, and at 
the destination while traveling away from home in lieu of 
substantiating the actual costs. Such method may include appropriate 
limitations and conditions in order to reflect more accurately 
automobile expenses over the entire period of usage. The taxpayer would 
not be relieved of the requirement to substantiate the amount of each 
business use (i.e., the business mileage), or the time and business 
purpose of each use. See Sec. 1.274-5T(b)(2) and (c).
    (k) and (l) [Reserved]. For further guidance, see Sec. 1.274-5T(k) 
and (l).
    (m) Effective date. Paragraphs (g) and (j) of this section apply to 
expenses paid or incurred after December 31, 1997.


Sec. 1.274-5T  [Amended]

    Par. 5. Paragraphs (g) and (j) of Sec. 1.274-5T are removed and 
reserved.


Sec. 1.274(d)-1  [Amended]

    Par. 6. Section 1.274(d)-1 is amended by removing paragraph (a)(3).


Sec. 1.274(d)-1T  [Removed]

    Par. 7. Section 1.274(d)-1T is removed.
Michael P. Dolan,
Deputy Commissioner of Internal Revenue.
[FR Doc. 98-26227 Filed 9-30-98; 8:45 am]
BILLING CODE 4830-01-U