Tesco Driveaway Co., Inc. - Page 17




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          the end of petitioner’s fiscal year.  Unsubstantiated testimony             
          that the Gentrys reported the income on their 1994 calendar year            
          returns, even if true, does not show that they treated the funds            
          as constructively received at or prior to the end of                        
          petitioner’s fiscal year on July 31, 1994. After all, payments              
          actually received by the Gentrys in the 5 months following the              
          end of petitioner’s fiscal year would still be within their                 
          calendar year.  Petitioner has failed to show either that the               
          Gentrys should have included the funds in gross income by the               
          end of petitioner’s fiscal year, or that the funds were in fact             
          so included.                                                                
               Finally, petitioner’s comment implies that the constructive            
          receipt doctrine should apply differently where the payor                   
          operates on a fiscal year.  Petitioner’s notion seems to be that            
          since petitioner’s fiscal tax year ended in the middle of the               
          Gentrys’ calendar tax years, funds received or taken into income            
          by the end of the calendar year should be treated as                        
          constructively received during the same “year,” and so the                  
          deduction should be allowed.                                                
               There are other matching provisions in the Internal Revenue            
          Code that do not require matching precision.  See, e.g., sec.               
          83(h) (deduction allowed for taxable year in which ends the                 
          taxable year in which item included in gross income of person               
          who performed services); sec. 404(a)(6) (payment deemed made on             






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