Venture Funding, Ltd. - Page 27

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               general rule in former section 1.83-6(a)(1) permitted                  
               the deduction for the amount "includible" in the                       
               service provider's gross income.  [T.D. 8599, 1995-2                   
               C.B. at 12.]                                                           

               After describing a special rule provided in the regulations            
          in effect from 1978 to 1995 (reasonably characterized as a safe             
          harbor by the majority, majority op. p. 14), the preamble                   
          continues as follows:                                                       
               The special rule was designed to ensure that the                       
               service recipient's deduction was in fact offset by a                  
               corresponding inclusion in the service provider's gross                
               income.  [T.D. 8599, 1995-2 C.B. at 12.]                               

               The "difficulty" to which the first of these two quotes                
          refers is the service recipient's task of proving that a service            
          provider included the fair market value of property in income.              
          The regulations in effect from 1978 to 1995 presented that                  
          "difficulty", prompting the IRS to provide a safe harbor.  Thus,            
          the preamble accompanying issuance of the 1995 regulations shows            
          that the meaning of "included" in section 83(h) was the same                
          before and after 1995, and is as the majority holds.                        
                                        III.                                          
                 Judge Ruwe's Dissent's Concerns About Practicality                   
               Judge Ruwe's dissent is concerned that the result reached by           
          the majority leads to a rule compliance with which is                       
          "impractical, if not impossible" for employers and employees or             








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