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METHODS OF ACCOUNTING A. Annual Accounting Method i. Whichever method, tax is always due on 15th day of fourth month following the close of the tax year (SS6072). ii. The method used by the TP will generally be acceptable if it accords with GAAP (Reg 1.446-1(c)(1)(ii)(C)). iii. Choosing the Taxable Year (SS441(b)) a. Calendar Year (441(b)(2)) o Required for any taxpayer who keeps no books, or does not have an annual accounting period, or one that doesn't end on last day of month. b. Fiscal Year: (441(b)(1)) Must end on the last day of a month other than Dec. o Required for any taxpayer (usually a business) that keeps its books on a non-calendar year basis. o SS441 limits ability to game system by selecting fiscal year right after you get a big gain iv. Net Operating Loss Carryovers (SS172) a. Can be used to offset net income in two years preceding loss year and 20 years following loss year. b. NOL is carried to the earliest possible year first, and then any remaining amount is carried forward to later years. o But remember, if company is failing, won't be able to take advantage of the carry forward unless acquired v. SS441 has special rules for partnerships, S Corps, personal service corps. B. Claim of Right (SS1341) i. Basic idea: you pay taxes in year one/two based on income to which you have claim of right and are entitled to. But if it turns out in a later year that that claim of right never materialized, you're allowed to a deduction and don't have to go through amending prior year's return. This comes from United States v Lewis (US 1951, p 180 squib). If same tax bracket in the two years, you don't even need SS1341, just Lewis. a. Ex: Insurance salesman pays tax on $10K income for commission on policy sale in year 1, but then year 2 customer cancels policy and he has to repay commission. ii. Really only a problem when you have different rates in different years. When this is the case, and the item exceeds $3K, SS1341 works in favor of taxpayer. TP has choice to just deduct the amount in year two, or to subtract from tax liability the amount by which he overpaid in year 1 (does this if in lower bracket in year 2). iii. SS1341 conditions: a. Amount exceeds $3K b. TP must have included the item in a previous tax year c. Has to have had "unrestricted right" to the income in the previous year d. In a later year, the TP had to pay the item back (turns out he did not have the unrestricted right) (Lewis---p 179)
C. Tax Benefit Rule (Hillsboro)---Inverse of Claim of Right i. Basically, you pay tax in a subsequent year to offset a tax benefit in an earlier year when it becomes clear that that benefit was granted based on a mistaken assumption. ii. Hillsboro---a bank paid property tax and the tax was later declared unconstitutional and refunded. a. Court says bank has to report as income the recovery to the extent that it took a deduction for the property taxes to reduce its federal income tax liability in a previous year. b. Unlike SS1341, don't account for different rates across years. Just deduct it in later year, regardless of what your marginal tax rate is there. iii. Note---this concept is different from simply making a mistake based on facts known or knowable in the earlier year, and having to simply amend the return to correct it. D. Cash Method Accounting i. All individuals must use cash method. ii. Income a. Basic: Amount is includible when actually or constructively received (cite SS451, also in 1.451-1). b. Constructive Receipt: Taxpayer has to report income in this period if the payment is credited to the TP, set apart for the TP, or otherwise made available for the TP during the period. (Reg
SS1.451-2(a)). o Checks for recipient are treated as cash, with very few exceptions. So if I write a check to you now, but you don't cash it for a year, you pay tax now as soon as you receive the check. o But, taxpayer has to know about the receipt in order for there to be constructive receipt (Davis) o Substantial Restrictions: (Reg SS1.451-2(a)): No constructive receipt if there are substantial restrictions on receipt or if payment is not yet vested. iii. Deductions: a. Basic: For TP on cash method, deductions should be taken into account for the taxable year in which paid (Reg SS1.461-1(a)). o NO Constructive Payment; Vander Poel v Commissioner (TC 1947, Unit VB supp)---there is no doctrine of constructive payment. Employer put money into employees' accounts, from which they could draw. But they never did. Employer tried to deduct it in year in which paid in, using corollary of constructive receipt. Court says even though logic would support this, the code does not.
? Deductions are "legislative grace," and you can't make any assumptions to allow for any new or stretch any existing deductions.
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