The opinion of the court was delivered by: CONNER
This is an action to recover alleged overpayments of $ 428.23 plus interest under the Federal Insurance Contribution Act ("FICA") and the Federal Unemployment Tax Act ("FUTA"). Plaintiff Beau Rivage Restaurant, Inc. ("Beau Rivage") has moved for summary judgment under Rule 56, F.R.Civ.P., on the grounds that the restaurant should not be required to pay FICA and FUTA taxes on certain meals and lodging furnished to its employees.
Plaintiff contends that the meals and lodging in question were not "remuneration" to its employees and thus were not "wages" subject to FICA or FUTA tax within the meaning of 26 U.S.C. §§ 3121(a) and 3306(b) and 26 C.F.R. §§ 31.3121(a)-1 and 31.3306(b)-1. The government maintains that the meals and lodging were properly included in the FICA and FUTA tax base and properly taxed; alternatively, the government requests further discovery on the issue of whether the meals and lodging were remuneration to plaintiff's employees includable in the FICA and FUTA tax base.
Plaintiff operates a restaurant in Newburgh, New York. In 1974, the tax year in question, the restaurant paid FICA and FUTA taxes on meals and lodging furnished to employees based on a value of 25 per meal and $ 2.50 per week for lodging. The Internal Revenue Service then asserted that FICA and FUTA taxes should have been paid on a valuation of $ 1.25 per meal and $ 10.00 per week for lodging. Plaintiff filed a protest with the Internal Revenue Service; the Service adjusted its valuation down to 75 per meal and 92 per day for lodging. Plaintiff paid the amount of the adjusted deficiencies. Plaintiff then filed formal claims for refund of all FICA and FUTA taxes paid with respect to employees' meals and lodging with the Internal Revenue Service. After the Service disallowed these claims, plaintiff commenced this action.
In connection with its motion for summary judgment, plaintiff has submitted affidavits which state:
1. That the restaurant is located approximately four miles from any other restaurant;
2. That most of Beau Rivage's employees were, in 1974, required to wear uniforms which plaintiff furnished free from charge;
3. That it would not be possible for Beau Rivage employees to change clothing, leave the restaurant, travel to another restaurant, eat a meal, and return to Beau Rivage within the time allotted by plaintiff to its employees for meal periods;
4. That Beau Rivage employees are not subject to call for work while they are eating meals, but have their meals in a separate room before patrons arrive at the meal hours;
5. That employees were furnished at least one, and sometimes two, meals per day; and
6. That six employees receive lodging without pay in six rooms available on the premises.
The government concedes that all employees of plaintiff were given at least one meal per day on the employer's premises for reasons ...