Unico Sales & Marketing, Inc. - Page 5




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          Fed. Sav. & Loan v. Commissioner, 30 T.C. 285 (1958); William J.            
          Lemp Brewing Co. v. Commissioner, 18 T.C. 586 (1952); Vander                
          Poel, Francis & Co. v. Commissioner, 8 T.C. 407 (1947); Sandoval            
          v. Commissioner, T.C. Memo. 1979-430; 2 Mertens, Law of Federal             
          Income Taxation, sec. 10:33.50, at 80 (1991 rev.).                          
               Petitioner misplaces reliance upon such cases as Fetzer                
          Refrigerator Co. v. United States, 437 F.2d 577 (6th Cir. 1971),            
          and Hyplains Dressed Beef, Inc. v. Commissioner, 56 T.C. 119                
          (1971), to support its position that constructive receipt is the            
          appropriate standard.  Those cases, which are inapposite,                   
          involved application of the matching principle of section                   
          267(a)(2), which matching principal is:  An accrual basis                   
          taxpayer is not entitled to deduct currently any amount if it is            
          payable to a related person and, because of the payee’s method of           
          accounting, the item is not currently includable in the payee’s             
          gross income.  See sec. 267(a)(2); Tate & Lyle, Inc. & Subs. v.             
          Commissioner, 103 T.C. 656, 659-661 (1994), revd. and remanded on           
          other grounds 87 F.3d 99 (3d Cir. 1996).  Section 267 applies               
          when the mismatching arises because the parties use different               
          methods of accounting.  That is not the case here.  Petitioner              
          and the Foriers are cash basis taxpayers.  There is no                      
          mismatching of a deduction and inclusion due to different                   
          accounting methods.  Petitioner distorts the language of section            
          267, arguing that such language would allow a cash basis taxpayer           





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