Kevin B. Kimberlin and Joni R. Steele, et al. - Page 10




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                                     Discussion                                       
          I.   Applicable Law                                                         
               Pursuant to section 83, the warrants are taxable as income             
          if they were issued to Ventures “in connection with the                     
          performance of services”.  Sec. 83(a).  Whether property is                 
          transferred in connection with the performance of services is               
          essentially a question of fact.  Bagley v. Commissioner, 85 T.C.            
          663, 669 (1985), affd. 806 F.2d 169 (8th Cir. 1986).  Section               
          1.83-3(f), Income Tax Regs., provides:                                      
               Property transferred to an employee or an independent                  
               contractor * * * in recognition of the performance of,                 
               or the refraining from performance of, services is                     
               considered transferred in connection with the                          
               performance of services within the meaning of section                  
               83. * * *  The transfer of property is subject to                      
               section 83 whether such transfer is in respect of past,                
               present, or future services.                                           
               Ventures was prevented, by virtue of Ciena’s breach, from              
          performing services it very much wished to perform.  The warrants           
          were issued to Ventures pursuant to the SRA, and not in                     
          recognition of the performance of, or the refraining from the               
          performance of, Ventures’ past, present, or future services.                
          Indeed, respondent stipulated that Ventures “never performed any            
          services for Ciena”.  In short, the requisite connection between            
          the issuance of the warrants and the performance of services does           
          not exist.  Thus, section 83 is inapplicable.                               









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