Maudella L. Caskey - Page 6

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            477 U.S. 317, 323 (1986); Espinoza v. Commissioner, 78 T.C. 412,                             
            416 (1982).  In deciding a motion for summary judgment, the Court                            
            will construe factual inferences in a manner most favorable to                               
            the opposing party.  Dahlstrom v. Commissioner, 85 T.C. 812, 821                             
            (1985).                                                                                      
                  The Supreme Court has held that gross income includes all                              
            clearly realized accessions to wealth over which a taxpayer has                              
            complete dominion.  James v. United States, 366 U.S. 213, 219                                
            (1961)(citing Commissioner v. Glenshaw Glass Co., 348 U.S. 426,                              
            431 (1955)).  A taxpayer has dominion and control over cash when                             
            he or she has the freedom to use it at will, even though that                                
            freedom may be assailable by persons with better title.  Rutkin                              
            v. United States, 343 U.S. 130, 137 (1952).  In Ianniello v.                                 
            Commissioner, 98 T.C. 165 (1992), this Court stated that a                                   
            taxpayer obtains possession, custody, and control of unlawfully                              
            acquired proceeds on the date he or she acquires such proceeds.                              
            Thus, a taxpayer who unlawfully acquires cash receives gross                                 
            income in the taxable year that he or she unlawfully acquires the                            
            cash, even though he or she makes restitution in a later year.3                              
            James v. United States, supra at 219-220; Ianniello v.                                       
            Commissioner, supra at 173.  Stated simply, the dominion and                                 

                  3To be sure, a law-abiding taxpayer is treated no                                      
            differently.  That is, a taxpayer who lawfully acquires cash                                 
            receives gross income in the taxable year that he or she lawfully                            
            acquires the cash, even though he or she makes restitution in a                              
            later year.  Healy v. Commissioner, 345 U.S. 278 (1953); United                              
            States v. Lewis, 340 U.S. 590 (1951).                                                        




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