donation of bonds

[Bees Knees]

The point I'm trying to make is that dating a check and mailing it on December 31 MAY NOT be controlling. You apparently insist that it is. I would suggest you read the Rev Ruling 73-99 I cited - it clearly shows (IMO) that merely writing & mailing is not sufficient. Always or never are tough words to use in tax discussions.

You might also wanted to look at a TC case Estate of Gagliardi. This will also show that the date on a check does NOT always control. I will not exasperate you any further - otherwise, I may run the risk of being "jainened" ( a new word in the tax lexicon).

Nobody on this message board has ever been banned for arguing tax law with me, or anyone else. There are two general categories of people who have been banned from using this board: 1) Those who have posted spam; 2) Those who have ignored private emails from the board sponsors asking them to refrain from certain behavior. If you are not posting spam, or if you are not receiving private emails warning you to stop doing something, then you have no fear of being banned.

In regards to your two citations, Rev Rul 73-99 applies to employee wages. The basic tax law concept in this Revenue Ruling is that an employer is considered to have paid wages when the employee has “constructive receipt” of those wages.

You cannot apply this ruling to other areas of income tax law. The ruling says in part:

“For Federal employment tax purposes, wages are paid by an employer at the time they are actually or constructively paid, with certain exceptions not material here. Wages are constructively paid when they are credited to the account or set apart for an employee so that they may be drawn upon by him at any time although not then actually reduced to possession. To constitute payment in such a case the wages must be credited to or set apart for the employee without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to be made, and must be made available to him so that they may be drawn upon at any time, and their payment brought within his own control and disposition. See sections 31.3121(a)-2, 31.3301-4, and 31.3402(a)-1(b) of the Employment Tax Regulations.”

Note that this revenue ruling says for Federal employment tax purposes. Federal employment taxes are not Federal income taxes. They are similar, but not the same. How many times have we talked about issues on this board where you cannot apply the principle of one set of tax rules to another? In this case, the Revenue Ruling specifically applies to Federal employment tax law. You cannot take the principle out of context and apply it to other areas of the law. That would be like saying because the self-employment tax rules under Section 1402 exclude rentals from real estate, then rentals from real estate must also be excluded from income taxes. Of course we know that is not true. Likewise, a principle or rule from Section 3121 and 3301 cannot be applied to other areas of tax law, unless those other areas say the principle behind Sections 3121 and 3301 apply.

Likewise, Gagliardi deals with the completed gift rules under the Federal Estate and Gift Tax laws. Again, you cannot apply the principle of one law to another, unless it specifically says so.

Accounting rules for Cash and Accrual taxpayers fall under Sections 446 – 448. Find a court case or Rev Rul that talks about these code sections where the principle of constructive receipt for the recipient determines when the payer gets the deduction.