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TIMING OF CHARITABLE DEDUCTIONSThe element that is critical to the passage of title in an item of property isdelivery, for delivery is the way title in property is actually transferred from oneperson to another. 5 Consequently, a charitable contribution deduction generallycomes into being on the date the gift property is delivered by the donor to thecharitable donee. 6 This general rule assumes a number of elements, including:• The absence of a condition (to occur either before or after the transfer)that defeats, or will defeat, the clear passage of title to the donee, 7 unless The condition is so remote as to be negligible, 8 or The condition is one that entails a legitimate restriction on the donee’suse of the gift property (such as a confining of the use of the gift forscholarship purposes or for the acquisition of a building for use by thecharitable donee in its charitable activities).• Compliance with the substantiation requirements. 9When the mails are used, the United States Postal Service is considered theagent of the recipient. Thus, when a contribution is mailed, the date of gift isusually the date the item is placed in the U.S. mail system.The concept of delivery, however, does not necessarily mean that the doneemust take actual physical possession of the property before a gift of the propertybecomes deductible. Title may pass when the charitable donee has the rightor entitlement to possession of the property. One court wrote that the “doneesimply must have the right to interrupt the donor’s possession and the right tohave physical possession of the property during each year following the donation... .” 10 This can involve forms of constructive delivery, but the donor mustgive up custody, control, and management of the property; otherwise, the gifttransaction is not “complete.” 115 E.g., Rev. Rul. 69-93, 1969-1 C.B. 139 (holding that title to real estate is transferred on the date that the “deedpassed,” not on the previous date when the parties executed a contract for the sale of the property). The U.S.Tax Court held that a sale of land occurred when the “title was finally approved and the deed of conveyancewas signed passing title and the right of possession to the vendee.” Wurtsbaugh v. Commissioner, 8 T.C. 183,189 (1947).6 Reg. § 1.170A-1(b), which states that “[o]rdinarily, a contribution is made at the time delivery is effected.”7 The subject of conditional gifts is addressed in § 10.3.8 Reg. § 1.170A-1(e), which states: “If as of the date of a gift a transfer for charitable purposes is dependent uponthe performance of some act or the happening of a precedent event in order that it might become effective, nodeduction is allowable unless the possibility that the charitable transfer will not become effective is so remoteas to be negligible. If an interest in property passes to, or is vested in, charity on the date of the gift and theinterest would be defeated by the subsequent performance of some act or the happening of some event, thepossibility of occurrence of which appears on the date of the gift to be so remote as to be negligible, the deductionis allowable.”9 See § 21.1.10 Winokur v. Commissioner, 90 T.C. 733, 740 (1988).11 E.g., LaGarde v. Commissioner, 76-1 U.S.T.C. 9248 (N.D. Ala. 1975); Mellon v. Commissioner, 36 B.T.A.977 (1937). See also Murphy v. Commissioner, 61 T.C.M. (CCH) 2935 (1991). Instances in which the “donor”retained too much dominion and control over the property that was the subject of the gift are Woods v. Commissioner,58 T.C.M. (CCH) 673 (1989), aff’d in unpublished opinion (6th Cir. 1991); Stjernholm v. Commissioner,58 T.C.M. (CCH) 389 (1989), aff’d in unpublished opinion (10th Cir. 1991); Roughen v.Commissioner, 54 T.C.M. (CCH) 510 (1987). 172