J. Brent Haymond and Janis S. Haymond - Page 9

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          Corp. v. Commissioner, T.C. Memo. 1961-184.  The same principle             
          applies in the instant case.4                                               
               Petitioners argue that InTex's obligation to pay the                   
          commission is fixed and enforceable, like a deferred obligation             
          to pay the purchase price of property, and therefore includable             
          in basis.  In so arguing, petitioners seek to apply the rationale           
          of Commissioner v. Tufts, 461 U.S. 300 (1983), and its                      
          predecessor, Crane v. Commissioner, 331 U.S. 1 (1947).  We                  
          disagree.  The fact of the matter is that the rationale of Tufts            
          and Crane in the cash versus accrual context is sui generis as              
          the Supreme Court's opinion in Tufts clearly reveals.  In our               
          judgment, it has no application to the issue before us.                     
               In a similar vein, we reject petitioners' attempt to remove            
          a capital expenditure from the impact of section 461,                       
          notwithstanding the fact that that section speaks in terms of a             
          "deduction".  Whether the item is within the category of a                  
          deduction or a capital expenditure, payment is a prerequisite for           
          its being taken into account by a cash basis taxpayer.  Indeed,             
          we have specifically so held where commissions were involved.               


               4  Factors cited by petitioners, such as that the amount of            
          the commission was ascertainable and that the expense had been              
          "incurred", are not relevant to a cash basis entity such as                 
          InTex.  Even if InTex used the accrual method of accounting and             
          met all other requirements for accrual of the expense, sec. 267             
          would operate to delay a deduction at least until Mr. Haymond, as           
          a related taxpayer on the cash method of accounting, included the           
          commission in income.                                                       




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