Eyefull Incorporated - Page 17

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          fund deferred compensation obligations.  Thus, the circumstances            
          of petitioner’s payment to Mohney in 1991 provide no reason to              
          doubt that it was what it purported to be.  We are satisfied that           
          the payment should not be recharacterized as a dividend.                    
               Having determined that the payment is deductible, we turn to           
          the issue of when the deduction may be taken.  Petitioner                   
          proposes to spread the $274,980 deduction ratably over the                  
          7 taxable years to which the payment applies.  This would entail            
          a deduction in the amount of $43,568 for each taxable year                  
          between TYE 8/31/85 and TYE 8/31/91.3  Petitioner is an accrual             
          basis taxpayer.  Under the accrual method, a liability is taken             
          into account for the taxable year in which all events have                  
          occurred that establish the fact of the liability, the amount can           
          be determined with reasonable accuracy and economic performance             
          has occurred.  Sec. 1.446-1(c)(1)(ii)(B), Income Tax Regs.                  
          Petitioner could not determine the amount payable to Mohney for             
          compensation until notified thereof by Newlands during TYE                  


               3 The figure that petitioner proposes on brief as the amount           
          of the annual deduction is $39,280 ($274,980 � 7). Considering              
          the $30,000 payment made to Mohney in 1988, the more appropriate            
          calculation would appear to be as follows:  $274,976 = 6x + (x -            
          $30,000); hence, x = $43,568.                                               
          Inasmuch as the first four of these taxable years are not                   
          before the Court and the period of limitations for claiming a               
          refund with respect to these years appears to have expired, sec.            
          6511(a), presumably petitioner takes this position in reliance on           
          the availability of relief under the mitigation provisions of the           
          Code.  See secs. 1311(a), 1312(4), 1313(a)(1), and 1314(b).                 
          Resort to the mitigation provisions to reopen closed taxable                
          years will be neither necessary nor warranted.                              




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