Venture Funding, Ltd. - Page 37

                                       - 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