- 8 -
in the corporation.
After a break, Mr. Gentry testified that he discussed the
matter with petitioner’s accountant, but his testimony was at
best vague as to whether the precise amounts and allocations
were determined at that time:
Q. Did you ever advise Mr. Livengood as to how much
compensation should be approved?
A. Well, that was when I tried to make the statement
early on that when I made that conscious decision
that there was funds there to be disbursed,
that’s when I told the accountant, you know,
whatever is necessary to do with this money here
let’s do it.
Q. Do you recall when that occurred, at least with
regard to the 1994 Tesco return?
A. Well, I’m sure that it occurred before the 31st
of July. It didn’t-–it wasn’t a spur of the
moment thing.
The accountant testified that Mr. Gentry told him to accrue
$100,000 for compensation for Doyce Gentry and his sons
“probably before or thereabouts” the end of the fiscal year.
The accountant did not testify that he received any direction as
to the division of the $100,000 between Doyce Gentry and his two
sons prior to the end of the fiscal year.
Moreover, the accountant reported the compensation for
employment tax purposes on Form 941 for the fourth quarter of
1994-–which commenced after the end of petitioner’s fiscal year.
Virtually the same constructive receipt language that applies to
income taxes also applies to employment taxes. See Cohen v.
United States, 63 F. Supp. 2d 1131, 1135 (C.D. Cal. 1999) (“FICA
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011