Tesco Driveaway Co., Inc. - Page 15




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          “paid” when constructively received.                                        
               Fourth, petitioner argues that the Kaw Dehydrating Co.                 
          bonuses were adjusted after the close of the fiscal year.  We do            
          not know whether the payment allocation here was likewise                   
          adjusted after the end of petitioner’s fiscal year because there            
          is no evidence to show what was determined prior to the end of              
          petitioner’s fiscal year.  Petitioner offered no evidence to                
          show that the allocation among the Gentrys had been made prior              
          to the end of petitioner’s fiscal year.  It is sufficient here              
          that the potential for a post-fiscal-year adjustment exists                 
          because petitioner took no formal action to set the specific                
          allocation prior to the end of its fiscal year.                             
               Finally, petitioner argues that in Kaw Dehydrating Co., the            
          “stockholders reported their respective bonuses on their                    
          personal income tax returns in the year following the year in               
          which they were awarded.”  This statement raises three potential            
          issues.  First, should the constructive receipt doctrine apply              
          differently depending on the length of time between the alleged             
          constructive receipt and the actual receipt?  Second, how should            
          the recipient’s treatment of the item on the recipient’s tax                
          return affect the payor’s right to a deduction?  Finally, does              
          the rule operate differently depending on whether the payor has             
          a fiscal or a calendar tax year?                                            
               Petitioner suggests that the constructive receipt doctrine             






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