Tesco Driveaway Co., Inc. - Page 13




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          unallocated compensation pool.                                              
               Petitioner next argues that there was no record in Jerome              
          Castree Interiors, Inc. of the bonus determination by the end of            
          the calendar year.  Similarly here, petitioner made no record               
          whatsoever of the bonus determination by the end of its fiscal              
          year.  Petitioner argues that the shareholders in Jerome Castree            
          Interiors, Inc. did not include the income in the same calendar             
          year as the corporation’s proposed deduction.  Here, petitioner             
          chose to use a fiscal year ending July 31, 1994.  Petitioner                
          cannot be treated as a calendar year taxpayer for the purpose of            
          determining when the deduction is allowed and a fiscal year                 
          taxpayer for all other purposes.                                            
               Finally, petitioner argues that the corporate resolution in            
          Jerome Castree Interiors, Inc. authorizing the pool of                      
          compensation specifically conditioned payment on the                        
          corporation’s ability to make payment.  Here, there was no                  
          corporate resolution authorizing the payment.  Certainly a                  
          corporate resolution authorizing payment conditioned on the                 
          corporation’s ability to make payment (when the corporation in              
          fact was able to do so) is better than no resolution at all.                
          The factual distinctions identified by petitioner are either                
          irrelevant or show that the taxpayers in Jerome Castree                     
          Interiors, Inc. had a stronger case for constructive receipt                
          than petitioner has here.                                                   






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