- 37 - (h) Deduction by Employer.--In the case of a transfer of property to which this section applies * * * there shall be allowed as a deduction under section 162, to the person for whom were performed the services in connection with which such property was transferred, an amount equal to the amount included under subsection (a), (b), or (d)(2) in the gross income of the person who performed such services. Such deduction shall be allowed for the taxable year of such person in which or with which ends the taxable year in which such amount is included in the gross income of the person who performed such services. [Emphasis added.] The majority interprets the term "included" as used in section 83 as if it means actually reported on each service provider's income tax return or otherwise used to compute the service provider's income tax liability.3 The majority simply describes this as the clear, plain, and unambiguous meaning of the statute. No precedent is cited. The word "included" is used three times in subsections (a) and (h) of section 83. Section 83(a) provides that the value of the property received as compensation for services "shall be included in the gross income" of the recipient. This means that such property is required to be included in gross income as a matter of law.4 3The alternative to reporting as gross income on the employee's or independent contractor's return would be an adjustment to gross income in a deficiency determination. 4In Adair v. Commissioner, T.C. Memo. 1985-392, we stated: (continued...)Page: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
Last modified: May 25, 2011