Diana T. Visco - Page 10




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          award in a tortlike action and not backpay; and the income is an            
          unauthorized withdrawal from her pension plan.                              
               The amount of any item of gross income shall be included in            
          the taxable year in which it is actually or constructively10                
          received by the taxpayer.  See sec. 451(a); sec. 1.451-1(a),                
          Income Tax Regs.  Amounts owed to cash basis taxpayers are not to           
          be included in the taxpayers’ income unless it appears that the             
          money was available to them, the payor was able and ready to pay            
          them, their right to receive the money was not restricted, and              
          their failure to receive the cash resulted from the exercise of             
          their own choice.  See Basila v. Commissioner, 36 T.C. 111,                 
          115-116 (1961).                                                             
               The district made two attempts to pay petitioner for the               
          backpay and interest on backpay during 1992.  Checks were                   
          initially issued to petitioner in February of 1992 and                      
          subsequently voided by the district because petitioner did not              



               10Sec. 1.451-2(a), Income Tax Regs., defines the term                  
          “constructive receipt” as follows:                                          
               (a) General rule.  Income although not actually reduced                
               to a taxpayer’s possession is constructively received                  
               by him in the taxable year during which it is credited                 
               to his account, set apart for him, or otherwise made                   
               available so that he may draw upon it at any time, or                  
               so that he could have drawn upon it during the taxable                 
               year if notice of intention to withdraw had been given.                
               However, income is not constructively received if the                  
               taxpayer’s control of its receipt is subject to                        
               substantial limitations or restrictions. * * *                         





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