Alfred P. Duffy - Page 6

                                   - NEXTRECORD  -                                    
          liable for the 10-percent additional tax under section 72(t).  We           
          first consider whether petitioner received unreported wages.                
          Issue (1): Unreported Wages                                                 
               For a taxpayer who uses the cash receipts and disbursements            
          method of accounting, an item is includable in gross income in              
          the year in which the item is actually or constructively                    
          received.  Sec. 451(a); sec. 1.451-1(a), Income Tax Regs.  Thus:            
                    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  *  *  * .                     
               However, income is not constructively received if the                  
               taxpayer's control of its receipt is subject to                        
               substantial limitations or restrictions.  [Sec. 1.451-                 
               2(a), Income Tax Regs.]                                                
               Respondent does not contend that petitioner actually                   
          received the net wages withheld by the school district in 1990.             
          Rather, respondent contends that petitioner constructively                  
          received such amount.  Specifically, respondent argues that                 
          petitioner incurred a debt as a result of the auditor's                     
          determination that petitioner received excess travel advances and           
          that such debt was discharged through the withholding of net                
          wages.  From this, respondent concludes that petitioner                     
          constructively received the net wages withheld by the school                
          district in 1990.                                                           
               We disagree with respondent.  The record demonstrates that             
          from the time of the auditor's determination in September 1990,             
          petitioner has continuously and vigorously denied that he was               




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