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set forth in a statutory provision dealing with deferred
compensation arrangements but is a creature of regulations and
recognition in legislative history. See Avon Products, Inc. v.
United States, 97 F.3d 1435 (Fed. Cir. 1996); Truck & Equipment
Corp. v. Commissioner, 98 T.C. 141, 145-154 (1992). Second, we
recognize that it does not necessarily follow that funds have
been paid because they have been constructively received for
income tax purposes. See Gillis v. Commissioner, 63 T.C. 11, 17
(1974). Third, the decided cases are less than models of clarity
in delineating distinctions in meaning among "included",
"received", and "paid", a view reflected in the opinion of the
Court of Appeals for the Ninth Circuit in Albertson's Inc. v.
Commissioner, 42 F.3d 537, 543 (9th Cir. 1994), affg. 95 T.C. 415
(1990). The Ninth Circuit noted that, for nonqualified plans,
"the employer is ordinarily allowed no deduction for
contribution, payments or benefits until they are taxed to the
employee", which it equated with a denial of the "employer's
deduction until the deferred amount is included in the employee's
income", meaning in its view that "current law * * * defers the
* * * deduction "until the year of payment. The court concluded
that "an employer cannot take tax deductions for payments to its
employees until the DCA participants include those payments in
their taxable income--that is, until the employees actually
receive the compensation promised to them." Albertson's Inc. v.
Commissioner, 42 F.3d at 543 (citations omitted and emphasis
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