- 51 - If the service provider is an employee of the person for whom services were performed, such deduction is allowed for the taxable year of the employer in which or with which ends the taxable year of the employee in which such amount is includible as compensation, but only if the employer deducts and withholds upon such amount in accordance with section 3402. * * * [Sec. 1.83-6(a)(2), Income Tax Regs.] The literal terms of the withholding requirement in the above-quoted regulation apply only where the deduction is allowed for the employer's taxable year in which or with which ends the taxable year in which the compensation is includible in the employees' income; i.e., where the timing rules of section 83(h) apply. The withholding requirement does not purport to apply to other situations, such as where the deduction is allowed in accordance with the employer's own accounting method pursuant to subparagraph (3). The majority states that the regulations under section 83(h) implement the following three requirements for deductibility: (1) The requirements of sections 162 or 212; (2) the requirements of section 83(h) regarding the amount of the deduction; and (3) the requirements of section 83(h) regarding the timing of the deduction. There is no question in this case that the transfer of property qualifies for deduction under section 162. Deductions under section 162 are not conditioned on withholding. There is also no question in this case regarding the amount ofPage: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Next
Last modified: May 25, 2011