Tesco Driveaway Co., Inc. - Page 12




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               Petitioner has failed to establish that it followed proper             
          formalities entitling Doyce Gentry or his sons to withdraw any              
          compensation prior to the end of petitioner’s fiscal year.  Like            
          the taxpayers in Jerome Castree Interiors, Inc. v. Commissioner,            
          supra, and Lacy Contracting Co. v. Commissioner, supra,                     
          petitioner had not formally allocated the compensation between              
          Mr. Gentry and his sons by the end of petitioner’s fiscal year.             
          Moreover, petitioner’s case is much weaker than were the                    
          taxpayers’ cases in Jerome Castree Interiors, Inc. and Lacy                 
          Contracing Co.  Not only did petitioner fail formally to                    
          allocate the compensation between Mr. Gentry and his sons by the            
          end of petitioner’s fiscal year, petitioner did not even                    
          authorize the total unallocated amount of compensation through              
          proper corporate procedures by the end of its fiscal year.                  
                Petitioner attempts to distinguish Jerome Castree                     
          Interiors, Inc. because the bonuses there had to be allocated               
          between five shareholders, while in the case at hand the                    
          compensation only had to be allocated between one shareholder               
          and two employees.  This distinction makes no difference.  To               
          actuate constructive receipt, a specific amount must be                     
          “credited to his account, set apart for him, or otherwise made              
          available so that he may draw upon it at any time”.  Sec. 1.451-            
          2(a), Income Tax Regs.  It does not matter what ownership or                
          corporate positions are held by the potential recipients of the             






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