Zahirudeen Premji and Carol M. Premji - Page 29

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          there can be no constructive receipt.  Noel v. Commissioner, 50             
          T.C. 702, 706-707 (1968) (citing Jacobs v. Commissioner, 22                 
          B.T.A. 1166, 1169 (1931) and Gullett v. Commissioner, 31 B.T.A.             
          1067, 1069 (1935)); see also Basila v. Commissioner, 36 T.C. 111,           
          115-116 (1961).                                                             
               Whether the funds were actually available for the taxpayer             
          to draw on, i.e., whether a check could be cashed, is a question            
          of fact.  Johnson v. Commissioner, 25 T.C. 499, 503 (1955).  We             
          consider all relevant factors.  Id.; see also Williams v.                   
          Commissioner, T.C. Memo. 1994-560; Rosenberg v. United States,              
          295 F. Supp. 820, 823-824 (E.D. Mo. 1969), affd. per curiam 422             
          F.2d 341 (8th Cir. 1970).                                                   
               We hold that Mr. Premji did not constructively receive the             
          $7,088 represented by the October 1, 1990, check because there              
          were substantial restrictions that would have prevented him from            
          cashing it.  That check was dated the same day that M&L filed its           
          bankruptcy petition.  Hence, M&L's assets became property of the            
          bankruptcy estate on that day and the automatic stay provided in            
          11 U.S.C. section 362(a) (1994) would have prevented the bank               
          from paying that check.                                                     
               Although 11 U.S.C. section 362(b)(11) (1994) creates an                
          exception to the automatic stay for presentment of negotiable               
          instruments, case law interpreting that provision indicates that            
          the exception does not authorize a transfer of bankruptcy estate            
          property.  Wittman v. State Farm Life Insurance Co. (In re                  




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