Employer-Provided Lodging Expenses

Internal Revenue Code, Subtitle A “Income Taxes,” Chapter 1 “Normal Taxes,” Part III “Items Specifically Excluded from Gross Income,” Section 119 “Meals or Lodging Furnished for the Convenience of the Employer” is the section of the Code under which employer-provided lodging expenses are legally deductible.

Deductibility Under Section 119

Code section 119(a)(2) states “There shall be excluded from gross income of an employee the value of any meals or lodging furnished to him, his spouse, or any of his dependents by or on behalf of his employer for the convenience of the employer, but only if... in the case of lodging, the employee is required to accept such lodging on the business premises of his employer as a condition of his employment.”

In other words, if an employee is contractually required to accept lodging on the business premises as a condition of employment, and this condition of employment is for the benefit of the employer, then it is both deductible to the employer and excludible from income for the employee.

Condition of Employment

Unlike the “for the benefit of the employer” standard, this requirement is easily satisfied by the existence of a legally enforceable contractual provision that makes the acceptance of the lodging a condition of employment.

On the Business Premises

Code section 119(b)(1) clarifies that “in determining whether meals or lodging are furnished for the convenience of the employer, the provisions of an employment contract or of a State statute fixing terms of employment shall not be determinative of whether the meals or lodging are intended as compensation.” In other words, an employment agreement simply stating “this is for the benefit of the company” will not suffice.

Treasury regulation section 1.119-1(c)(1) has generally defined "business premises of the employer" to mean the place of employment of the employee. The prevailing legal authorities have explained that the premises must either be an integral part of the business property or a place where the employer carried on some business activities.[1]

Both the United States Court of Federal Claims as well the IRS itself have held that a self-employed individual’s in-home activities involving business-related entertaining, working in the evenings, and working on weekends qualify the home as the business premises “of the employer.”[2] This is based on both the judicial interpretation as well as the IRS itself.

The Service has ruled that lodging includes such items as heat, electricity, gas, water and sewerage services.[3] Moreover, where an employer furnishes such services necessary to make the lodging habitable for the employee, the value of those services is excludible as well, which includes renovations and capital improvements that are not lavish or excessive under the circumstances.[4]

For Benefit of the Employer

Both the United States Court of Appeals for the Fifth Circuit as well as the United States Court of Federal Claims have held that the convenience-of-the-employer and condition-of-employment tests are essentially the same.[5] Under both tests, there must be a “direct nexus” between the lodging furnished and the asserted business interests of the employer.[6]

Although an employment agreement may lack the statement of an express requirement to accept lodging, it is not fatal; however, the lodging must be necessary as a practical matter to the performance of the employee’s duties.[7]

Lastly, Section 280A does not apply thanks to the carve-out for Section 119 applicability under Section 280A(d)(2)(c).

Conclusion

A self-employed individual’s wholly-owned company would directly benefit by operating the company from the self-employed individual’s personal residence by avoiding costly commercial office space. By operating from the personal residence, a self-employed individual’s home, for federal income tax purposes only, becomes an integral part of the business property where business activities are conducted from a home-office. As such, the company may directly pay for or reimburse the self-employed individual for personal living expenses in order to effectively provide lodging on what would be deemed to be the business premises. Thus, this may be deducted on Schedule C of the self-employed individual’s U.S. federal income tax return in accordance with federal tax law, established case law, and even the IRS’s own guidance.

“In America, there are two tax systems: one for the informed and one for the uninformed. Both are legal.” The Honorable Learned Hand, United States Court of Appeals (1872-1961)


[1] See Benninghoff v. C.I.R., 71 T.C. 216, aff’d, 614 F.2d 398 (5th Cir. 1980); Dole v. C.I.R., 43 T.C. 697, aff’d, 351 F.2d 308 (1st Cir. 1965) acq., 1966-2 C.B. 3.

[2] See Adams v. U.S., 218 Ct. Cl. 322 (1978); Rev. Rul. 75-540 (rental value of governor's mansion is excludible from gross income).

[3] See Rev. Rul. 68-579 (such amounts may not be deducted by the employee since they are personal, family, or living expenses made nondeductible by section 262 but may still be deductible by the business of the self-employed individual, which achieves the same result of nontaxation on those expenses).

[4] See Rev. Rul. 68-579.

[5] See Bob Jones University v. U.S., 229 Ct. Cl. 340 (1982); Benninghoff v. C.I.R., 71 T.C. 216 (1978), aff’d, 614 F.2d 398 (5th Cir. 1980).

[6] See Adams v. U.S., 218 Ct. Cl. 322 (1978); TAM 9404005.

[7] See Coyner v. Bingler, 344 F.2d 736 (3d Cir. 1965).

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