Venture Funding, Ltd. - Page 53

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          the year ended December 28, 1991.  The taxpayer's employees                 
          received unrestricted property representing the accrued vacation            
          and severance pay on March 13, 1992, which was during the                   
          employees' calendar year ended December 31, 1992.  If the                   
          explicit timing provisions of section 83(h) and section 1.83-               
          6(a)(2), Income Tax Regs., applied, the taxpayer would not have             
          been entitled to take the deduction until its taxable year ended            
          December 28, 1993; i.e., the taxpayer's taxable year in which or            
          with which ends the employee's taxable year in which the amount             
          was includible in the employee's income.  Nevertheless, based on            
          the exception in subparagraph (3), we allowed the deduction in              
          the year ended December 28, 1991, in accordance with the                    
          taxpayer's accrual method of accounting.13                                  
               The instant case turns on an interpretation of section 83              
          and the regulations.  Legal interpretations should not be driven            
          by the facts of a particular case.  While I disagree with the               
          majority's interpretation, I recognize that the operative facts             
          of this particular case raise questions about the "equity" of               
          allowing a corporate deduction for compensation paid to its                 
          controlling shareholders and principal officers, who failed to              
          report the same items as income.  However, neither respondent nor           


               13In Schmidt Baking Co. v. Commissioner, 107 T.C. 271                  
          (1996), the parties had stipulated that the taxpayer-employer had           
          not withheld taxes when it transferred the property on Mar. 13,             
          1992.                                                                       





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