Tesco Driveaway Co., Inc. - Page 18




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          last day of preceding tax year if paid by due date of payor’s               
          tax return, including extensions); former sec. 267(a)(2)                    
          (repealed 1984) (payments made within 2-1/2 months after end of             
          the payor’s taxable year relate to that year).  However, section            
          267(a)(2) requires a precise matching of the date of the                    
          deduction and the date that the amount is includable in the                 
          gross income of the recipient:                                              
               any deduction allowable under this chapter in respect                  
               of such amount shall be allowable as of the day as of                  
               which such amount is includible in the gross income of                 
               the person to whom the payment is made (or, if later,                  
               as of the day on which it would be so allowable but                    
               for this paragraph). * * * [Sec. 267(a)(2) (flush                      
               language); emphasis added.]                                            
          This language does not permit a payment made after the end of               
          the fiscal year but during the calendar year to relate back.                
          Petitioner chose to use a fiscal year.  “Under present law * * *            
          [current section 267], an accrual payor is effectively placed on            
          the cash basis for all payments to related cash basis payees,               
          and the payor’s deduction therefore is pushed over to the next              
          year if payment is made the stroke after midnight of the last               
          day of the accrual year.”  Bittker & Lokken, Federal Taxation of            
          Income, Estates & Gifts, par. 78.2.1, at 78-11 (2d ed. 2001).               
          Petitioner cannot deduct payments made after the end of its                 
          fiscal year merely because they were made prior to the end of               
          the calendar year.  Petitioner’s efforts to distinguish Kaw                 
          Dehydrating Co. v. Commissioner, 74 T.C. 370 (1980), on factual             






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