Venture Funding, Ltd. - Page 25

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          provision.  While the term "includible" is interchangeable with             
          "included" in section 83(a) without affecting the result, it is             
          definitely not interchangeable in section 83(h).  The effect of             
          applying the maxim regarding consistent use of terms here would             
          be to override the plain meaning of the term "included" in                  
          section 83(h) and to significantly alter the meaning of section             
          83(h).                                                                      
                                         II.                                          
                                The 1995 Regulations                                  
               Judge Ruwe's dissent does not take into account the 1995               
          amendments to the section 83(h) regulations or the accompanying             
          preamble, both of which shed important light on the issue in                
          dispute here.                                                               
               The 1995 regulations under section 83(h) provide a safe                
          harbor under which a service provider is deemed to have included            
          an amount as compensation in gross income if the person for whom            
          the services were performed timely meets Form W-2 or Form 1099              
          reporting requirements under sections 6041 or 6041A.  Sec. 1.83-            
          6(a)(2), Income Tax Regs.  The preamble accompanying the 1995               
          amendments to those regulations states that, absent qualification           
          under that special rule, the employer must show that the employee           
          "actually included" the amount in income in order to support its            
          deduction of the amount.  T.D. 8599, 1995-2 C.B. 12, 12-13.                 
               The 1995 amendments to the section 83(h) regulations and the           
          preamble accompanying them show that the Commissioner's                     




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