Venture Funding, Ltd. - Page 50

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          applicable.10  Petitioner's transfers come within the exception             
          in subparagraph (3).                                                        
               The majority suggests that the exception in subparagraph (3)           
          overrides the explicit statutory timing requirements in section             
          83(h) but does not override the withholding requirements in                 
          section 1.83-6(a)(2), Income Tax Regs.  This is a non sequitur.             
          Section 1.83-6(a)(2), Income Tax Regs., imposes a withholding               
          requirement, but only in connection with the application of its             
          specific timing provisions.  Thus, in the only sentence that has            
          any application to this case, the regulation provides:                      




               10Sec. 83(h) requires that any deduction by the service                
          recipient be allowed "for the taxable year of such person [the              
          service recipient or employer] 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."  In light of the                
          explicit timing provisions of sec. 83(h), how can the exception             
          in subparagraph (3) be justified?  The original version of sec.             
          83 introduced in the House of Representatives contained no                  
          provision regarding deductions for property transferred in return           
          for services.  What is now sec. 83(h) was first introduced by the           
          Senate Finance Committee.  The Senate report states:                        

                    The committee provided rules for the employer's                   
               deduction for restricted property given to employees as                
               compensation.  The allowable deduction is the amount                   
               which the employee is required to recognize as income.                 
               * * * [S. Rept. 91-552, at 123 (1969), 1969-3 C.B. 423,                
               502; emphasis added.]                                                  

          It is therefore possible that the U.S. Treasury Department                  
          concluded that sec. 83(h) was not intended to affect deductions             
          based on the transfers of unrestricted property.                            





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