Venture Funding, Ltd. - Page 47

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          83(h).  This interpretation is supported by Duncan Indus., Inc.             
          v. Commissioner, 73 T.C. 266, 285 (1979), where we stated:                  
               Section 83(h) expressly allows the person for whom the                 
               services were performed to deduct an amount equal to                   
               the amount includable in the service performer's income                
               under section 83(a).  * * *  [Emphasis added.]                         
               The majority's interpretation of section 83 conflicts with             
          the interpretation contained in section 1.83-6(a)(1), Income Tax            
          Regs.  The majority attempts to reconcile this conflict by                  
          describing the regulations as being an "employer friendly" "safe            
          harbor".  But such rationalization is only necessary because of             
          the majority's strained interpretation of the term "included".              
          If given a choice between two possible interpretations, we should           
          choose the one that is reasonable and practical rather than                 
          assume that Congress intended to set standards for deductions               
          that are impractical, if not impossible, to meet.8  See United              
          States v. American Trucking Associations, Inc., 310 U.S. 534, 543           
          (1940).  The more reasonable and practical interpretation, and              
          the one contained in the applicable interpretative regulations,             
          is that a deduction under section 83(h) is allowed for the                  
          employer's taxable year that coincides with the taxable year in             
          which the compensation is "includible" in the service provider's            
          income.                                                                     

               8Indeed, were we to interpret "included" as meaning                    
          reported, an employer could arguably take the deduction in any              
          amount for any year that matches the employee's reporting                   
          position.                                                                   





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