- 29 - 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 rePage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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