AIG bonuses returned--tax implications?

Just a quick thought, since I am again too busy to really put in the effort here today.

As I understand it, you owe taxes on money you have been paid. In particular, you are responsible for taxes in the year in which you take constructive receipt. So those AIG folks who were paid bonuses took constructive receipt of that money. At that moment, it became income which they must report and pay taxes on. What they do with it after that is up to them.

Now, many of them have returned the money. They have given AIG a gift. They did not return money paid to them by mistake, as if their paycheck accidentally got an extra zero. They did not refuse to money when it was offered (an act which would negate constructive receipt). They just dipped into their cash-on-hand and wrote a check to AIG. Anytime you render a gift to anyone other than an IRS recognized charity in excess of $13,000 ($26,000 per couple) you will be required to pay a gift tax.

On top of all that, Congress is moving to tax the money at 90%. I don't expect Congress to so carefully craft such a law so as to exempt from normal income or gift taxes money that gets returned. They might not even think to exempt returned money from the 90% threat!

So the people who have returned their bonuses face normal income taxes, plus gift taxes, on money they have returned! And they may owe 90% taxes on top of that!

So a guy who was given a bonus of $1M in January, returns the money in February. He took constructive receipt. He owes 35% income tax on the $1M, ignoring deductions etc. That's $350k. He "returned" his $1M bonus, by giving AIG a gift. He's now out the $1M, but still owes $350k in income tax (maybe $900k!!). Adding insult to the injury, he may face up to 45% gift taxes. So returning his $1M bonus has may now cost him $1.7M.