Tony M. Smith and Nellie Smith v. United States

PER CURIAM: Plaintiffs, a Mississippi highway patrolman and wife, sued for a refund of income taxes for 1972. The government included in income cash payments received by the husband to reimburse him for the cost of meals eaten while on duty. Plaintiffs claimed the payments were excludible under § 119 of the Internal Revenue Code of 1954. The district court granted a refund, relying on U. S. v. Barrett, 321 F.2d 911 (C.A.5, 1963). The government concedes that Barrett controls unless reversed. *1156 We affirm on the basis of Barrett. Accord, U. S. v. Morelan, 356 F.2d 199 (C.A.8, 1966); Keeton v. U. S., 383 F.2d 429 (C.A.10,1967). Contra, Wilson v. U. S., 412 F.2d 694 (C.A.1, 1969). AFFIRMED.